England and Wales
|
001-35573
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98-1467236
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(State or Other Jurisdiction of Incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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263 Tresser Boulevard, Suite 1100
Stamford, Connecticut 06901
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25 Bury Street, 3rd Floor
London SW1Y 2AL, England
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☐
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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☐
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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☐
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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☐
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01
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Entry Into a Material Definitive Agreement
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(c) |
Depositary Receipt Arrangements
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Item 3.02
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Unregistered Sale of Securities
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Item 3.03
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Material Modification To Rights of Security Holders
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Item
5.02
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Departure of Directors or Certain Officers; Election of Directors, Appointment of Certain Officers; Compensatory
Arrangements of Certain Officers.
|
|
· |
Audit Committee: Andrew Hines (chair), Ginger Jones and Peter Johnston;
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· |
Corporate Governance and Nominating Committee: Wayne Hinman (chair), Ilan Kaufthal, Andrew Hines and Sipho Nkosi; and
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|
· |
Human Resources and Compensation Committee: Wayne Hinman (chair),
Peter Johnston, Ginger Jones and
Sipho Nkosi.
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Item 5.03
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Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
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Item 8.01
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Other Events.
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· |
increase its share capital by allotting and issuing new shares in accordance with the New Articles and any relevant shareholder resolution;
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· |
consolidate all or any of its share capital into shares of a larger nominal amount (i.e., par value) than the existing shares;
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· |
subdivide any of its shares into shares of a smaller nominal amount (i.e., par value) than its existing shares; or
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· |
redenominate its share capital or any class of share capital.
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· |
the Company’s annual accounts;
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· |
the directors’ remuneration report;
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· |
the directors’ report;
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· |
any separate corporate governance statement;
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· |
a strategic report; and
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· |
the auditor’s report on those accounts, the auditable part of the director’ remuneration report, the directors’ report, the strategic report and any separate corporate
governance statement.
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Item 9.01
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Financial Statements and Exhibits.
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(d)
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Exhibits
.
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No.
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Description
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Articles of Association of Tronox Holdings plc.
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||
Specimen ordinary share certificate of Tronox Holdings plc.
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||
Shareholder’s Deed by and between
Tronox Holdings plc
and
Exxaro Resources Limited, dated March 22, 2019.
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||
Tronox Holdings plc Amended and Restated Management Equity Incentive Plan.
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||
Tronox Holdings plc Amended and Restated Annual Bonus Incentive Plan.
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||
Form of Director Deed of Indemnification.
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||
Agreement for the Provision of Depositary Services and Custody Services, dated as of March 14, 2019, in respect of Tronox Holdings plc
Depositary Receipts among Computershare Trust Company, N.A., Tronox Holdings plc and Exxaro Resources Limited.
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||
List of subsidiaries of Tronox Holdings plc.
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TRONOX HOLDINGS PLC
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|||
Date: March 27, 2019
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By: /s/ Jeffrey Neuman | ||
Name: Jeffrey Neuman
Title: Senior Vice President, General Counsel and Secretary
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DEFINITIONS AND INTERPRETATION
|
1
|
|
1.
|
Definitions and interpretation
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1
|
2.
|
Limited liability
|
4
|
3.
|
Model articles excluded
|
4
|
4.
|
Form of resolutions
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4
|
SHARE CAPITAL
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4
|
|
5.
|
Rights attached to shares
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4
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6.
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Redeemable shares
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4
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7.
|
Redeemable Deferred Shares
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4
|
8.
|
Rights Plan
|
6
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9.
|
Payment of commissions
|
6
|
10.
|
Trusts not recognised
|
7
|
11.
|
Variation of rights
|
7
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12.
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Matters not constituting a variation of rights
|
7
|
CERTIFICATES
|
7
|
|
13.
|
Right to certificates
|
7
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14.
|
Execution of certificates
|
7
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15.
|
Replacement certificates
|
8
|
16.
|
Uncertificated securities
|
8
|
LIEN
|
8
|
|
17.
|
Company’s lien
|
8
|
18.
|
Enforcing lien by sale after notice
|
9
|
19.
|
Manner of sale
|
9
|
20.
|
Application of sale proceeds
|
9
|
CALLS ON SHARES
|
9
|
|
21.
|
Calls
|
9
|
22.
|
Time of call
|
10
|
23.
|
Liability of joint holders
|
10
|
24.
|
Interest
|
10
|
25.
|
Sums due on allotment or by way of instalment treated as calls
|
10
|
26.
|
Power to differentiate
|
10
|
27.
|
Advance payment of calls
|
10
|
FORFEITURE OF SHARES
|
10
|
|
28.
|
Notice if call not paid
|
10
|
29.
|
Forfeiture if notice not complied with
|
11
|
30.
|
Notice of forfeiture
|
11
|
31.
|
Sale of forfeited share
|
11
|
32.
|
Arrears to be paid notwithstanding forfeiture
|
11
|
33.
|
Statutory declaration and validity of sale
|
12
|
65.
|
Votes of member suffering incapacity
|
21
|
66.
|
No right to vote where sums overdue on shares
|
21
|
67.
|
Votes on a poll
|
21
|
68.
|
Right to withdraw demand for a poll
|
21
|
69.
|
Procedure on a poll
|
21
|
70.
|
When poll to be taken
|
21
|
71.
|
Continuance of other business after poll ordered
|
22
|
72.
|
Proposal or amendment of resolution
|
22
|
73.
|
Amendment of resolution ruled out of order
|
22
|
74.
|
Objections or errors in voting
|
22
|
75.
|
Suspension of rights for non-disclosure of interest
|
23
|
PROXIES
|
24
|
|
76.
|
Execution of an appointment of proxy
|
24
|
77.
|
Times for deposit of an appointment of proxy
|
25
|
78.
|
Form of appointment of proxy
|
26
|
79.
|
Validity of proxy
|
26
|
80.
|
Corporate representatives
|
27
|
DIRECTORS
|
27
|
|
81.
|
Number of Directors
|
27
|
82.
|
No shareholding qualification for Directors
|
27
|
REMUNERATION OF DIRECTORS
|
27
|
|
83.
|
Ordinary remuneration
|
27
|
84.
|
Additional Remuneration for Extra Services
|
28
|
85.
|
Expenses of Directors
|
28
|
EXECUTIVE DIRECTORS
|
28 | |
86.
|
Executive Directors
|
28
|
POWERS AND DUTIES OF DIRECTORS
|
28
|
|
87.
|
General powers of the Company vested in the Board
|
28
|
DELEGATION OF DIRECTORS’ POWERS
|
29
|
|
88.
|
Agents
|
29
|
89.
|
Delegation to individual Directors
|
29
|
90.
|
Delegation to committees
|
29
|
91.
|
Power to establish local boards etc
|
29
|
SPECIFIC POWERS
|
30
|
|
92.
|
Provision for employees
|
30
|
93.
|
The Company’s name
|
30
|
94.
|
Borrowing Powers
|
30
|
APPOINTMENT, RETIREMENT AND REMOVAL OF DIRECTORS
|
31
|
|
95.
|
Retirement of Directors
|
31
|
96.
|
Position of Retiring Director
|
31
|
97.
|
Power of the Company to appoint Directors
|
31
|
98.
|
Power of the Board to appoint Directors
|
33
|
99.
|
Company’s power to remove a Director and appoint another in his or her place
|
33
|
100.
|
Vacation of office by Directors
|
34
|
DIRECTORS’ INTERESTS
|
34
|
|
101.
|
Transactions, offices, employment and interests
|
34
|
102.
|
Conflicts of interest requiring Board authorisation
|
37
|
DIRECTORS’ GRATUITIES AND PENSIONS
|
38
|
|
103.
|
Directors’ gratuities and pensions
|
38
|
PROCEEDINGS OF THE BOARD
|
38
|
|
104.
|
Board meetings
|
38
|
105.
|
Notice of Board meetings
|
39
|
106.
|
Voting
|
39
|
107.
|
Quorum
|
39
|
108.
|
Board vacancies below minimum number
|
40
|
109.
|
Appointment of chairman
|
40
|
110.
|
Competence of the Board
|
40
|
111.
|
Participation in meetings by telephone
|
40
|
112.
|
Written resolutions
|
40
|
113.
|
Company books
|
40
|
114.
|
Validity of acts of the Board or a committee
|
41
|
ALTERNATE DIRECTORS
|
41
|
|
115.
|
Appointment, removal and resignation
|
41
|
COMPANY SECRETARY
|
42
|
|
116.
|
Appointment and removal of Company Secretary
|
42
|
THE SEAL
|
42
|
|
117.
|
Use of seal
|
42
|
DIVIDENDS
|
42
|
|
118.
|
Company may declare dividends
|
42
|
119.
|
Board may pay dividends
|
42
|
120.
|
Calculation and currency of dividends
|
43
|
121.
|
Waiver of dividends
|
43
|
122.
|
Non-cash dividends
|
43
|
123.
|
Scrip dividends
|
43
|
124.
|
Enhanced scrip dividends
|
45
|
125.
|
Right to deduct amounts due on shares from dividends
|
45
|
126.
|
No interest on dividends
|
45
|
127.
|
Payment procedure
|
45
|
128.
|
Receipt by joint holders
|
46
|
129.
|
Where payment of dividends need not be made
|
46
|
1. |
DEFINITIONS AND INTERPRETATION
|
1.1 |
In these Articles, the following words and expressions have the meanings indicated below:
|
1.2 |
In these Articles:
|
|
1.2.1 |
the expressions “debenture” and “debenture holder” include “debenture stock” and “debenture stockholder”.
|
|
1.2.2 |
references to writing include any method of reproducing or representing words, symbols or other information in such form (including in electronic form or by making it
available on a website) that it can be read or seen with the naked eye and a copy of it can be retained.
|
|
1.2.3 |
references to the execution of a document (including where execution is implied, such as in the giving of a written consent) include references to its being executed
under hand or under seal or by any other method, and, in relation to anything sent or supplied in electronic form, include references to its being executed by such means and incorporating such information as the Board may from time to
time stipulate for the purpose of establishing its authenticity and integrity.
|
|
1.2.4 |
unless the context otherwise requires, words or expressions that are defined in the Regulations or the Companies Act 2006 bear those meanings (but as if the definitions
contemplated their use in these Articles as well as in the relevant legislation), except that the word “
company
” shall include any body
corporate.
|
|
1.2.5 |
except where the contrary is stated or the context otherwise requires, any reference to a statute or statutory provision includes any order, regulation, instrument or
other subordinate legislation made under it for the time being in force, and any reference to a statute, statutory provision, order, regulation, instrument or other subordinate legislation includes any amendment, extension,
consolidation, re-enactment or replacement of it for the time being in force.
|
|
1.2.6 |
words importing the singular number only include the plural and vice versa. Words importing the masculine gender include the feminine and neuter gender. Words importing
persons include corporations.
|
|
1.2.7 |
references to a meeting shall not be taken as requiring more than one person to be present if any quorum requirement can be satisfied by one person.
|
|
1.2.8 |
references to any security as being in certificated form or uncertificated form refer, respectively, to that security being a certificated unit of a security or an
uncertificated unit of a security for the purposes of the Regulations.
|
|
1.2.9 |
headings are inserted for convenience only and shall not affect the construction of these Articles.
|
2. |
LIMITED LIABILITY
|
3. |
MODEL ARTICLES EXCLUDED
|
4. |
FORM OF RESOLUTIONS
|
5. |
RIGHTS ATTACHED TO SHARES
|
6. |
REDEEMABLE SHARES
|
7. |
REDEEMABLE DEFERRED SHARES
|
7.1 |
For the purposes of this Article and the rights and restrictions attaching to the Redeemable Deferred Shares:
|
7.2 |
Subject to Article 7.4, the Redeemable Deferred Shareholders shall have no right to receive any dividend or other distribution whether of capital or income.
|
7.3 |
The Redeemable Deferred Shares shall confer no right on the Redeemable Deferred Shareholders to receive notice of, or to attend or vote at, any general meeting of the
Company, but shall confer on each holder thereof a right to receive notice of and to attend and to vote at any separate class meeting of the holders of Redeemable Deferred Shares.
|
7.4 |
Other than a return of capital in connection with the cancellation of the entire nominal value of each Redeemable Deferred Share, on a return of capital in a liquidation,
but not otherwise, the Redeemable Deferred Shareholders shall have the right to receive the nominal amount of each such Redeemable Deferred Share held, but only after the holder of each Other Share in the capital of the Company shall
have received the amount paid up or credited as paid up on each such Other Share and the Redeemable Deferred Shareholders shall not be entitled to any further participation in the assets or profits of the Company.
|
7.5 |
A reduction by the Company of the capital paid up or credited as paid up on the Redeemable Deferred Shares and the cancellation of such Redeemable Deferred Shares will be
treated as being in accordance with the rights attaching to the Redeemable Deferred Shares and will not involve a variation of such rights for any purpose, and the Company will be authorised at any time, without obtaining the consent
of the Redeemable Deferred Shareholders, to reduce its capital (in accordance with the Statutes).
|
7.6 |
The rights, limitations and restrictions attaching to the Redeemable Deferred Shares shall not be, and shall not be deemed to be, varied or abrogated in any way by:
|
|
7.6.1 |
a reduction or cancellation of all or part of the share capital of the Company;
|
|
7.6.2 |
any repurchase by the Company of any of the Other Shares;
|
|
7.6.3 |
the allotment or issue of further shares ranking subsequent to,
pari passu
with, or in priority to them, or any Redeemable Deferred Shares;
|
|
7.6.4 |
the subdivision, consolidation, conversion or redesignation of any of the Other Shares; or
|
|
7.6.5 |
any alteration or amendment to these Articles or the adoption of new articles of association in substitution for, and to the exclusion of, these Articles.
|
7.7 |
Notwithstanding any other provision in these Articles (subject to the Statutes), any Redeemable Deferred Shares shall be redeemed on the next working day following
written notice requesting such redemption being given by either the Company or the holder for the time being of the Redeemable Deferred Shares concerned to the other at any time after the earlier of:
|
|
7.7.1 |
the Company satisfying the Share Capital Requirement by virtue only of the Other Shares that are at that time in issue (i.e. independently of, and without regard to, any
Redeemable Deferred Shares); or
|
|
7.7.2 |
the Share Capital Requirement ceasing to apply to the Company.
|
7.8 |
On redemption of any Redeemable Deferred Share, the Company shall pay to the holder of such share in full the amount paid up or credited as paid up on such share, and the
holder of such share shall be bound to deliver to the Company at its registered office the certificate in respect of such share.
|
8. |
RIGHTS PLAN
|
8.1 |
Subject to the Statutes, the Board may exercise any power of the Company to establish a shareholders rights plan (the “
Rights Plan
”), including approving the execution of any document relating to the adoption and/or implementation of the Rights Plan. The Rights Plan may be in such form as the Board shall in
its absolute discretion determine and may in particular (but without restriction or limitation) include such terms as are described in the Summary of Example Terms in the form appearing in the Appendix to these Articles. The Board
may also terminate the Rights Plan at any time including but not limited to in connection with a transaction.
|
8.2 |
Subject to the Statutes, the Board may exercise any power of the Company to grant rights (including approving the execution of any documents relating to the grant of
rights) to subscribe for shares, in accordance with the Rights Plan (the “
Rights
”).
|
8.3 |
The purpose for which the Board shall be entitled to establish the Rights Plan and to grant Rights in accordance therewith, as provided in Articles 8.1 and 8.2, shall be
where, in the opinion of the Board, establishment of the Rights Plan would preserve the ability of the Company to use its net operating loss carryforwards and other tax attributes (“
Tax Benefits
”), which would be substantially limited if the Company experienced an ownership change as defined in Section 382 of the United States Internal Revenue Code (an “
Ownership Change
”).
|
8.4 |
Subject to the Statutes, the Board may determine not to redeem the Rights and accordingly exercise any power of the Company to (a) allot shares pursuant to the exercise
of the Rights; or (b) exchange or cause to be exchanged all or part of the Rights (in each case, other than Rights held by an Acquiring Person) for ordinary shares and/or another class of shares (an “
Exchange
”) in each case in accordance with the Rights Plan. The purpose for which the Board shall be entitled not to redeem the Rights, and accordingly to exercise any
power of the Company to allot shares or effect an Exchange shall be where, in the opinion of the Board, not to redeem the Rights and accordingly to exercise any power of the Company to allot shares or effect an Exchange would preserve
the ability of the Company to use its Tax Benefits, which would be substantially limited if the Company experienced an Ownership Change.
|
9. |
PAYMENT OF COMMISSIONS
|
10. |
TRUSTS NOT RECOGNISED
|
11. |
VARIATION OF RIGHTS
|
12. |
MATTERS NOT CONSTITUTING A VARIATION OF RIGHTS
|
12.1 |
The rights attached to any share or class of shares shall not, unless otherwise expressly provided by its terms of issue, be deemed to be varied, abrogated or breached
by:
|
|
12.1.1 |
the creation or issue of further shares ranking
pari passu
with it; or
|
|
12.1.2 |
the purchase or redemption by the Company of any of its own shares (whether of that or any other class) or the sale of any shares (of that class or any other class) held
as treasury shares.
|
13. |
RIGHT TO CERTIFICATES
|
13.1 |
Except as otherwise provided in these Articles, every person whose name is entered in the Register as a holder of shares in the Company shall be entitled, within the time
specified by the Statutes and without payment, to one certificate for all the shares of each class registered in the holder’s name provided that, except insofar as the Board decides otherwise, no such certificate will be issued unless
requested by the relevant person. Upon a transfer of part of the shares of any class registered in the holder’s name, every holder shall be entitled without payment to one certificate for the balance in certificated form of the
holder’s holding. Upon request and upon payment, for every certificate after the first, of such reasonable sum (if any) as the Board may determine, every holder shall be entitled to receive several certificates for certificated shares
of one class registered in the holder’s name (subject to surrender for cancellation of any existing certificate representing such shares). Every holder shall be entitled to receive one certificate in substitution for several
certificates for certificated shares of one class registered in the holder’s name upon surrender to the Company of all the share certificates representing such shares.
|
13.2 |
Subject as provided in the preceding part of this Article, the Company shall not be bound to issue more than one certificate in respect of certificated shares registered
in the names of two or more persons and delivery of a certificate to one joint holder shall be a sufficient delivery to all of them.
|
14. |
EXECUTION OF CERTIFICATES
|
15. |
REPLACEMENT CERTIFICATES
|
16. |
UNCERTIFICATED SECURITIES
|
16.1 |
Unless otherwise determined by the Board and permitted by the Regulations, the Company shall not issue and no person shall be entitled to receive a certificate in respect
of any share or other security issued by the Company for so long as it is in uncertificated form.
|
16.2 |
Conversion of securities in certificated form into uncertificated form, and vice versa, may be made in such manner as the Board may, in its absolute discretion, think fit
(subject always to the Statutes and the facilities and requirements of the relevant system).
|
16.3 |
All registers of holders relating to securities issued by the Company will be maintained as required by the Regulations and by the rules of the relevant system and will
distinguish between securities held in uncertificated form and securities held in certificated form. Unless the Board shall otherwise determine, holdings of the same holder or joint holders in certificated form shall be treated as
separate from the same person or persons’ holdings in uncertificated form, but a class of securities shall not be treated as two classes by virtue only of the fact that it comprises securities in certificated form and securities in
uncertificated form (even if, as a result of any provision of these Articles or the Regulations, securities are treated differently according to whether they are in certificated or uncertificated form).
|
16.4 |
No certificate will normally be issued in respect of securities held by a financial institution.
|
16.5 |
The provisions of these Articles shall not apply to shares of any class which are in uncertificated form to the extent that such Articles are inconsistent with:
|
|
16.5.1 |
the holding of shares of that class in uncertificated form;
|
|
16.5.2 |
the transfer of title to shares of that class by means of a relevant system; or
|
|
16.5.3 |
any provision of the Regulations
|
17. |
COMPANY’S LIEN
|
17.1 |
The Company shall have a first and paramount lien on every share (not being a fully paid share) for all monies (whether presently payable or not) called or payable at a
fixed time in respect of that share. The Company’s lien on a share shall extend to any amount payable in respect of it.
|
17.2 |
The Board may at any time resolve that any share shall be wholly or in part exempt from this Article.
|
18. |
ENFORCING LIEN BY SALE AFTER NOTICE
|
19. |
MANNER OF SALE
|
19.1 |
To give effect to a sale, the Board may:
|
|
19.1.1 |
in the case of shares held in certificated form, authorise and instruct some person (which may include the holder of shares concerned) to execute an instrument of
transfer of the shares sold; and
|
|
19.1.2 |
in the case of shares held in uncertificated form, subject to the system’s rules, require the Operator of a relevant system to convert any such share into certificated
form in order to enable the Company to deal with the share in accordance with this Article, and after such conversion authorise and instruct some person to execute an instrument of transfer of the share (and to take such other steps
as may be necessary to give effect to the sale);
|
20. |
APPLICATION OF SALE PROCEEDS
|
21. |
CALLS
|
21.1 |
Subject to the terms of issue, the Board may from time to time make calls upon the members in respect of any money unpaid on their shares (whether in respect of the
nominal amount or by way of premium). Each member shall (subject to receiving at least 14 clear days’ notice specifying when and where payment is to be made) pay to the Company as required by the notice the amount called on the
member’s shares. A call may be made payable by instalments. A call may, at any time before receipt by the Company of any sum due under the call, be revoked in whole or in part and payment of a call may be postponed in whole or in
part, as the Board may determine.
|
21.2 |
A person upon whom a call is made shall remain liable for all calls made upon the person notwithstanding the subsequent transfer of the shares in respect of which the
call was made.
|
22. |
TIME OF CALL
|
23. |
LIABILITY OF JOINT HOLDERS
|
24. |
INTEREST
|
25. |
SUMS DUE ON ALLOTMENT OR BY WAY OF INSTALMENT TREATED AS CALLS
|
26. |
POWER TO DIFFERENTIATE
|
27. |
ADVANCE PAYMENT OF CALLS
|
27.1 |
The Board may, if it thinks fit, receive from any member willing to advance them all or any part of the monies unpaid and uncalled upon the shares held by the member and
may pay interest upon the monies so advanced (to the extent such monies exceed the amount of the calls due and payable upon the shares in respect of which they have been advanced) at such rate (not exceeding 15% per annum unless the
Company by ordinary resolution otherwise directs) as the Board may determine.
|
27.2 |
A payment in advance of calls shall extinguish, to the extent of it, the liability upon the shares in respect of which it is advanced.
|
28. |
NOTICE IF CALL NOT PAID
|
28.1 |
If a call or instalment of a call remains unpaid after it has become due and payable, the Board may at any time serve a notice on the holder requiring payment of so much
of the call or instalment as remains unpaid together with any interest which may have accrued thereon and any costs, charges and expenses incurred by the Company by reason of such non-payment. The notice shall specify a further day
(not being less than 14 clear days from the date of the notice) on or before which, and the place where the payment required by the notice is to be made and shall indicate that if the notice is not complied with the shares in respect
of which the call was made or instalment is payable will be liable to be forfeited.
|
28.2 |
The Board may accept the surrender of any share liable to be forfeited and, in such case, references in these Articles to forfeiture shall include surrender.
|
29. |
FORFEITURE IF NOTICE NOT COMPLIED WITH
|
30. |
NOTICE OF FORFEITURE
|
31. |
SALE OF FORFEITED SHARE
|
31.1 |
Until cancelled in accordance with the Statutes, a forfeited share shall be deemed to be the property of the Company and may be sold, re-allotted or otherwise disposed of
either to the person who was the holder before the forfeiture or to any other person upon such terms and in such manner as the Board thinks fit. To give effect to a sale or other disposal, the Board may:
|
|
31.1.1 |
in the case of shares held in certificated form, authorise and instruct some person (which may include the holder of shares concerned) to execute an instrument of
transfer of the shares; and
|
|
31.1.2 |
in the case of shares held in uncertificated form, subject to the system’s rules, require the Operator of a relevant system to convert any such share into certificated
form in order to enable the Company to deal with the share in accordance with this Article, and after such conversion authorise and instruct some person to execute an instrument of transfer of the share (and to take such other steps
as may be necessary to give effect to the sale or disposal);
|
32. |
ARREARS TO BE PAID NOTWITHSTANDING FORFEITURE
|
32.1 |
A person whose shares have been forfeited shall cease to be a member in respect of the forfeited shares and, in the case of shares held in certificated form, shall
surrender to the Company for cancellation the certificate for the forfeited shares but in all cases shall remain liable to the Company for all monies which at the date of forfeiture were presently payable by the relevant person to the
Company in respect of those shares with interest thereon from the date of forfeiture until payment at such rate (not exceeding 15% per annum) as the Board may determine.
|
32.2 |
The Board may waive payment wholly or in part and the Board may enforce payment without any allowance for the value of the shares at the time of forfeiture or for any
consideration received on their disposal.
|
33. |
STATUTORY DECLARATION AND VALIDITY OF SALE
|
34. |
POWER TO SELL SHARES OF UNTRACED SHAREHOLDERS
|
34.1 |
Subject to the Regulations, the Company shall be entitled to sell at the best price reasonably obtainable any shares of a holder or transmittee if in respect of those
shares:
|
|
34.1.1 |
no cheque, warrant or other financial instrument or payment sent by the Company in the manner authorised by these Articles has been cashed for a period of at least 12
years (the “
qualifying period
”) and in the qualifying period the Company has paid at least three dividends and no dividend has been claimed;
|
|
34.1.2 |
the Company has at the expiration of the qualifying period given notice of its intention to sell such shares by two advertisements, one in a national newspaper published
in the United Kingdom and the other in a newspaper circulating in the area in which the last known address of the holder or the address at which service of notices may be effected in the manner authorised by these Articles is located;
|
|
34.1.3 |
so far as the Board is aware, the Company has not during the qualifying period or the period of three months after the date of such advertisements (or the later of the
two dates if they are published on different dates) and prior to the exercise of the power of sale received any communication from the holder or transmittee,
|
35. |
MANNER OF SALE AND CREATION OF DEBT IN RESPECT OF NET PROCEEDS
|
35.1 |
To give effect to any sale pursuant to the immediately preceding Article, the Board may:
|
|
35.1.1 |
in the case of shares held in certificated form, authorise and instruct some person (which may include the holder of shares concerned) to execute an instrument of
transfer of the shares; and
|
|
35.1.2 |
in the case of shares held in uncertificated form, subject to the system’s rules, require the Operator of a relevant system to convert any such share into certificated
form in order to enable the Company to deal with the share in accordance with this Article, and after such conversion authorise and instruct some person to execute an instrument of transfer of the share (and to take such other steps
as may be necessary to give effect to the sale or disposal);
|
35.2 |
The net proceeds of sale shall belong to the Company, which shall be indebted to the former holder or transmittee for an amount equal to such proceeds and shall enter the
name of such former member or other person in the books of the Company as a creditor for such amount. No trust shall be created in respect of the debt, no interest shall be payable in respect of it and the Company shall not be
required to account for any monies earned on the net proceeds, which may be employed in the business of the Company or otherwise invested as the Board thinks fit.
|
36. |
FORM AND EXECUTION OF TRANSFER
|
36.1 |
Subject to such of the restrictions of these Articles as may be applicable, a member may transfer all or any of the member’s shares, in the case of shares held in
certificated form, by an instrument of transfer in any usual form or in any other form which the Board may approve or, in the case of shares held in uncertificated form, in accordance with the Regulations and the system’s rules and
otherwise in such manner as the Board in its absolute discretion shall determine. An instrument of transfer shall be executed by or on behalf of the transferor and (unless the share is fully paid) by or on behalf of the transferee.
Subject to the Statutes, the transferor shall be deemed to remain the holder of the share until the name of the transferee is entered in the Register in respect of it.
|
36.2 |
Subject to the Statutes and notwithstanding any other provisions of these Articles, the Board shall have power to implement any arrangements it may think fit to enable:
|
|
36.2.1 |
title to any securities of the Company to be evidenced and transferred without a written instrument in accordance with the Regulations and the facilities and requirements
of the relevant system concerned; and
|
|
36.2.2 |
rights attaching to such securities to be exercised notwithstanding that such securities are held in uncertificated form where, in the Board’s opinion, these Articles do
not otherwise allow or provide for such exercise.
|
37. |
RIGHT TO REFUSE REGISTRATION OF SHARES
|
38. |
OTHER RIGHTS TO REFUSE REGISTRATION
|
38.1 |
Subject to the Statutes, the Board may also refuse to register the transfer of a share:
|
|
38.1.1 |
in the case of shares held in certificated form, if it is not lodged, duly stamped (if necessary), at the Office or at such other place as the Board may appoint and
accompanied by the certificate for the shares to which it relates (where a certificate has been issued in respect of the shares and these Articles do not provide for such a transfer to be valid without production of the certificate)
and/or such other evidence as the Board may reasonably require to show the right of the transferor to make the transfer;
|
|
38.1.2 |
if it is not in respect of one class of share only;
|
|
38.1.3 |
if it is not in favour of four or fewer transferees;
|
|
38.1.4 |
if it is in favour of a minor, bankrupt or person of mental ill health;
|
|
38.1.5 |
without prejudice to the foregoing, in the case of shares held in uncertificated form, in any other circumstances permitted by the Regulations and/or the system’s rules;
or
|
|
38.1.6 |
where the Board is obliged or entitled to refuse to do so as a result of any failure to comply with a notice under Section 793 of the Companies Act 2006.
|
39. |
NOTICE OF REFUSAL
|
40. |
NO FEE FOR REGISTRATION
|
41. |
RETENTION OF DOCUMENTS
|
42. |
OTHER REGISTERS
|
43. |
TRANSMISSION
|
44. |
ELECTION BY TRANSMITTEE
|
45. |
RIGHTS IN RESPECT OF THE SHARE
|
46. |
ALTERATION OF CAPITAL
|
46.1 |
Where the Company sub-divides its shares, or any of them, into shares of a smaller amount, the resolution may determine that, as between the shares resulting from the
sub-division, any of them may have a preference or advantage as compared with others.
|
46.2 |
Whenever as a result of a consolidation, division or sub-division of shares any member would become entitled to fractions of a share, the Board may deal with the
fractions as it thinks fit and, in particular, may sell the shares representing the fractions to any person (including, subject to the Statutes, the Company) and may distribute the net proceeds of sale in due proportion among those
members except for amounts of £5.00 (or its equivalent in US dollars at the relevant time) or less, which shall be retained for the benefit of the Company. To give effect to any such sale, the Board may authorise and instruct a person
to take such steps as may be necessary (subject, in the case of shares held in uncertificated form, to the system’s rules) to transfer or deliver the shares to, or in accordance with the directions of, the purchaser. Subject to the
Statutes, where a member holds shares in both certificated and uncertificated form, the Board may for these purposes treat them as separate holdings, and may at its discretion arrange for any shares representing fractions to be
entered in the Register as held in certificated or uncertificated form in order to facilitate their sale under this Article. The transferee shall not be bound to see to the application of the purchase money and the transferee’s title
shall not be affected by any irregularity in, or invalidity of, the proceedings relating to the sale.
|
47. |
PURCHASE OF OWN SHARES
|
47.1 |
Subject to the Statutes and to any rights conferred on the holders of any class of shares, the Company may purchase its own shares (including any redeemable shares).
|
47.2 |
On a purchase by the Company of its own shares, neither the Company nor the Board shall be required to select the shares to be purchased rateably or in any particular
manner as between the holders of shares of the same class or as between them and the holders of shares of any other class or in accordance with the rights as to dividends or capital attached to any class of shares.
|
48. |
ANNUAL GENERAL MEETINGS
|
49. |
CONVENING GENERAL MEETINGS
|
50. |
LENGTH OF NOTICE PERIOD
|
50.1 |
An annual general meeting shall be convened by at least 21 clear days’ notice. Subject to the Statutes, all other general meetings shall be convened by at least 14 clear
days’ notice. Subject to these Articles and to any restrictions imposed on any shares, the notice shall be given to all the members, to all transmittees and to the Directors and Auditors.
|
50.2 |
Subject to the provisions of the Statutes, and although called by shorter notice than that specified in Article 50.1, a general meeting is deemed to have been duly called
if it is so agreed:
|
|
50.2.1 |
in the case of an annual general meeting, by all the members entitled to attend and vote at the meeting; and
|
|
50.2.2 |
in the case of a general meeting (other than an annual general meeting), by a majority in number of the members having a right to attend and vote at the meeting, being a
majority who together hold not less than 95% in nominal value of the shares giving that right.
|
51. |
CONTENTS OF NOTICES
|
51.1 |
Every notice calling a general meeting shall specify:
|
|
51.1.1 |
the place, the day and the time of the meeting and the general nature of the business to be transacted;
|
|
51.1.2 |
(if such is the case) that the meeting is an annual general meeting;
|
|
51.1.3 |
(if such is the case) that the meeting is convened to pass a special resolution; and
|
|
51.1.4 |
with reasonable prominence that a member is entitled to appoint one or more proxies to exercise all or any of the member’s rights to attend, speak and vote at the
meeting, that a proxy need not be a member, and the address or addresses where appointments of proxy are to be deposited, delivered or received insofar as any such address is other than the postal address of the Office.
|
52. |
OMISSION OR NON-RECEIPT OF NOTICE
|
53. |
CHANGE OF DATE, TIME OR PLACE OF MEETING
|
54. |
QUORUM
|
55. |
PROCEDURE IF QUORUM NOT PRESENT
|
55.1 |
If within five minutes (or such longer time not exceeding one hour as the chairman of the meeting may decide to wait) after the time appointed for the commencement of the
meeting a quorum is not present, the meeting shall (if requisitioned in accordance with the Statutes) be dissolved or (in any other case) stand adjourned to such other day (not being less than ten clear days nor more than 28 days
later) and at such time and place as the chairman of the meeting may decide. If at the adjourned meeting a quorum is not present within one hour after the time appointed for holding the meeting, the meeting shall be dissolved.
|
55.2 |
The Company shall give not less than seven clear days’ notice of any meeting adjourned through want of a quorum.
|
56. |
CHAIRMAN OF GENERAL MEETING
|
56.1 |
The chairman (if any) of the Board or, in his or her absence, the deputy chairman (if any) shall preside as chairman at every general meeting. If there is no such
chairman or deputy chairman, or if at any meeting neither the chairman nor a deputy chairman is present within five minutes after the time appointed for the commencement of the meeting, or if neither of them is willing to act as
chairman, the Directors present shall choose one of their number to act, or if one Director only is present he or she shall preside as chairman, if willing to act. If no Director is present, or if each of the Directors present
declines to take the chair, the persons present and entitled to vote shall elect one of their number to be chairman.
|
56.2 |
The chairman of the meeting may invite any person to attend and speak at any general meeting of the Company whom he or she considers to be equipped by knowledge or
experience of the Company’s business to assist in the deliberations of the meeting.
|
56.3 |
The decision of the chairman of the meeting as to points of order, matters of procedure or arising incidentally out of the business of a general meeting shall be
conclusive, as shall be his or her decision, acting in good faith, on whether a point or matter is of this nature.
|
57. |
ATTENDANCE AND SPEAKING AT GENERAL MEETINGS
|
57.1 |
A person is able to exercise the right to speak at a general meeting when that person is in a position to communicate to all those attending the meeting, during the
meeting, any information or opinions which that person has on the business of the meeting.
|
57.2 |
A person is able to exercise the right to vote at a general meeting when:
|
|
57.2.1 |
that person is able to vote, during the meeting, on resolutions put to the vote at the meeting; and
|
|
57.2.2 |
that person’s vote can be taken into account in determining whether or not such resolutions are passed at the same time as the votes of all the other persons attending
the meeting.
|
57.3 |
The Directors may make whatever arrangements they consider appropriate to enable those attending a general meeting to exercise their rights to speak or vote at it.
|
57.4 |
Each Director shall be entitled to attend and to speak at any general meeting of the Company and at any separate general meeting of the holders of any class of shares or
debentures in the Company.
|
58. |
MEETING AT MORE THAN ONE PLACE AND/OR IN A SERIES OF ROOMS
|
58.1 |
A general meeting or adjourned meeting may be held at more than one place, anywhere in the world. The notice of meeting will specify the place at which the chairman will
be present (the “
Principal Place
”) and a letter accompanying the notice will specify any other place(s) at which the meeting will be held
simultaneously (but any failure to do this will not invalidate the notice of meeting).
|
58.2 |
A general meeting or adjourned meeting will be held in one room or a series of rooms at the place specified in the notice of meeting or any other place at which the
meeting is to be held simultaneously.
|
58.3 |
If the meeting is held in more than one place and/or in a series of rooms, it will not be validly held unless all persons entitled to attend and speak at the meeting are
able:
|
|
58.3.1 |
if excluded from the Principal Place or the room in which the chairman is present, to attend at one of the other places or rooms; and
|
|
58.3.2 |
to communicate with one another audio-visually throughout the meeting.
|
58.4 |
The Board may make such arrangements as it thinks fit for simultaneous attendance and participation at the meeting and may vary any such arrangements or make new
arrangements. Arrangements may be notified in advance or at the meeting by whatever means the Board thinks appropriate to the circumstances. Each person entitled to attend the meeting will be bound by the arrangements made by the
Board.
|
58.5 |
Where a meeting is held in more than one place and/or a series of rooms, then for the purpose of these Articles the meeting shall consist of all those persons entitled to
attend and participate in the meeting who attend at any of the places or rooms.
|
59. |
SECURITY ARRANGEMENTS
|
60. |
ADJOURNMENTS
|
60.1 |
The chairman of the meeting may at any time without the consent of the meeting adjourn any meeting (whether or not it has commenced or a quorum is present) either
indefinitely or to such time and place as he or she may decide if it appears to him or her that:
|
|
60.1.1 |
the persons entitled to attend cannot be conveniently accommodated in the place appointed for the meeting;
|
|
60.1.2 |
the conduct of persons present prevents, or is likely to prevent, the orderly continuation of business; or
|
|
60.1.3 |
an adjournment is otherwise necessary so that the business of the meeting may be properly conducted.
|
60.2 |
In addition, the chairman of the meeting may at any time with the consent of any meeting at which a quorum is present (and shall if so directed by the meeting) adjourn
the meeting either indefinitely or to such time and place as he or she may decide. When a meeting is adjourned indefinitely the time and place for the adjourned meeting shall be fixed by the Board.
|
60.3 |
No business shall be transacted at any adjourned meeting except business which might properly have been transacted at the meeting had the adjournment not taken place.
|
61. |
NOTICE OF ADJOURNED MEETING
|
61.1 |
If a meeting is adjourned indefinitely or for 30 days or more or for lack of a quorum, at least seven clear days’ notice specifying the place, the day and the time of the
adjourned meeting shall be given, but it shall not be necessary to specify in the notice the nature of the business to be transacted at the adjourned meeting. Otherwise, it shall not be necessary to give notice of an adjourned
meeting.
|
62. |
METHOD OF VOTING
|
62.1 |
For as long as any shares are held by a Depositary, any resolution put to the vote at a general meeting shall be decided on a poll without demand and without a show of
hands.
|
62.2 |
Otherwise, at any general meeting a resolution put to the vote of the meeting shall be decided on a show of hands unless before or on the declaration of the result of the
show of hands a poll is duly demanded. Subject to the Statutes, a poll may be demanded by:
|
|
62.2.1 |
the chairman of the meeting;
|
|
62.2.2 |
at least five members or proxies entitled to vote on the resolution;
|
|
62.2.3 |
any member or proxy alone or together with one or more others representing in aggregate at least one-tenth of the total voting rights of all the members having the right
to attend and vote on the resolution (excluding any voting rights attached to any shares held as treasury shares); or
|
|
62.2.4 |
any member or proxy alone or together with one or more others holding or having been appointed in respect of shares conferring a right to vote on the resolution, being
shares on which an aggregate sum has been paid up equal to not less than one-tenth of the total sum paid up on all the shares conferring that right (excluding any voting rights attached to any shares held as treasury shares);
|
63. |
VOTES OF MEMBERS
|
64. |
VOTES OF JOINT HOLDERS
|
65. |
VOTES OF MEMBER SUFFERING INCAPACITY
|
66. |
NO RIGHT TO VOTE WHERE SUMS OVERDUE ON SHARES
|
67. |
VOTES ON A POLL
|
67.1 |
On a poll, a member entitled to more than one vote on a poll need not, if the member votes, use all the member’s votes or cast all the votes the member uses in the same
way.
|
67.2 |
A member shall be entitled to cast votes on a poll in advance, including by telephone or other electronic means, if the member complies with such procedures for the
purposes of authentication, and the votes are cast within such time as may be fixed in accordance with the Statutes, as the Board may prescribe.
|
68. |
RIGHT TO WITHDRAW DEMAND FOR A POLL
|
69. |
PROCEDURE ON A POLL
|
70. |
WHEN POLL TO BE TAKEN
|
71. |
CONTINUANCE OF OTHER BUSINESS AFTER POLL ORDERED
|
72. |
PROPOSAL OR AMENDMENT OF RESOLUTION
|
73. |
AMENDMENT OF RESOLUTION RULED OUT OF ORDER
|
74. |
OBJECTIONS OR ERRORS IN VOTING
|
74.1 |
If:
|
|
74.1.1 |
any objection shall be raised to the qualification of any voter;
|
|
74.1.2 |
any votes have been counted which ought not to have been counted or which might have been rejected; or
|
|
74.1.3 |
any votes are not counted which ought to have been counted
|
75. |
SUSPENSION OF RIGHTS FOR NON-DISCLOSURE OF INTEREST
|
75.1 |
If a member, or any other person appearing to be interested in shares held by that member, has been duly given a notice under Section 793 of the Companies Act 2006 (a “
Disclosure Notice
”) and has failed in relation to any shares (the “
default
shares
”) to give the Company the information required by such notice within 14 days of the date of such notice, then (unless the Board shall determine otherwise) from the expiry of that period:
|
|
75.1.1 |
the member shall not be entitled in respect of the default shares to be present or to vote (in person, by proxy or, if it is a corporation, by representative) at any
general meeting or at any separate meeting of the holders of any class of shares or on any poll; and
|
|
75.1.2 |
where the default shares represent at least 0.25% of the issued shares of the Company or the class in question (in either case, calculated exclusive of shares held as
treasury shares):
|
|
(a) |
any dividend (including shares issued in lieu of dividends) or other monies payable in respect of the default shares shall be withheld by the Company, which shall not
have any obligation to pay interest on it; and
|
|
(b) |
no transfer, other than an excepted transfer, of any shares held by the member shall be registered unless the member is not in default as regards supplying the
information required and the transfer is of part only of the member’s holding and when lodged for registration is accompanied by a certificate from the member in a form satisfactory to the Board that after due and careful enquiry the
member is satisfied that no person in default as regards supplying such information is interested in any of the shares the subject of the transfer.
|
75.2 |
Where, on the basis of information obtained from a member in respect of any share held by the member or from any other person appearing to be interested in such share,
the Company gives a Disclosure Notice to any other person, it shall also send a copy of the notice to that member, but any failure to do so, or the non-receipt of the copy by the member, shall not invalidate or otherwise affect the
operation of this Article.
|
75.3 |
Except to the extent that they are default shares by virtue of Article 75.1, any new shares in the Company issued in right of any default share shall be subject to the
same restrictions in this Article as apply to the default share and for as long as they so apply. The Board may make any right to an allotment of the new shares subject to such restrictions when those shares are issued (and may for
that purpose require the new shares to be issued and held in certificated form).
|
75.4 |
Where any person appearing to be interested in any shares has been served with a Section 793 notice and such shares are held by a Depositary, the provisions of this
Article 75 shall be deemed to apply only to those shares held by the Depositary in which such person appears to be interested and not (so far as that person’s apparent interest is concerned) to any other shares held by the Depositary
in which such person does not appear to have an interest and references to default shares shall be construed accordingly.
|
75.5 |
Where any restrictions imposed under this Article apply in relation to any shares, they shall cease to have effect if and when, and to the extent that, the Board so
determines, except that particular shares shall in any event automatically cease to be subject to any such restrictions seven days after the earlier of (a) receipt by the Board of notice that such shares are the subject of an excepted
transfer and (b) due compliance, to the satisfaction of the Board, with the relevant Disclosure Notice. If any or all of the restrictions in this Article shall cease to apply to particular shares, any dividends and other monies
withheld by reason of a restriction which then ceases to apply shall be paid without interest to the person who would have been entitled to them if that restriction had not applied, or as the person may direct.
|
75.6 |
This Article is in addition to, and shall not in any way prejudice or affect, the statutory rights of the Company arising from any failure by any person to give any
information required by a Disclosure Notice within the time specified in it. For the purpose of this Article, a Disclosure Notice may require any information to be given before the expiry of 14 days from the date of the notice.
|
75.7 |
In this Article:
|
|
75.7.1 |
an “
excepted transfer
” means:
|
|
(a) |
a transfer pursuant to acceptance of a takeover bid; or
|
|
(b) |
a transfer that results from a sale made through the NYSE or any recognised investment exchange (as defined in the Financial Services and Markets Act 2000) or any other
stock exchange outside the United Kingdom on which shares in the capital of the Company are normally traded; or
|
|
(c) |
a transfer which is shown to the satisfaction of the Board to be made as a result of a sale of the whole of any interest in the shares to a person who is unconnected with
the member and with any other person appearing to be interested in the shares;
|
|
75.7.2 |
a “
person appearing to be interested
” in any shares means any person named in a
response to a Disclosure Notice as being so interested or shown in any register kept by the Company under the Companies Act 2006 as so interested or, taking into account any response or failure to respond to such notice or to any
other statutory notice or any other relevant information, any person whom the Company has reasonable cause to believe is so interested; and
|
|
75.7.3 |
references to a person having failed to give the Company the information required by a Disclosure Notice, or being in default as regards supplying such information,
include (without limitation) (i) references to the person’s having failed or refused to give all or any part of it and (ii) references to the person’s having given information which the person knows to be false in a material
particular or the person’s having recklessly given information which is false in a material particular.
|
75.8 |
Notwithstanding anything to the contrary in this Article, no restriction shall apply by virtue of this Article to the extent that applying the restriction would
contravene the Regulations, but, subject to the system’s rules, the Board may require the Operator of a relevant system to convert any share held in uncertificated form into certificated form in order to enable the Company to impose
restrictions in relation to the share in accordance with this Article.
|
76. |
EXECUTION OF AN APPOINTMENT OF PROXY
|
76.1 |
If the appointment of a proxy is:
|
|
76.1.1 |
in hard copy form, it shall be executed under the hand of the appointor or of the appointor’s attorney authorised in writing or, if the appointor is a corporation, either
under its seal or under the hand of an officer, attorney or other person authorised to sign it;
|
|
76.1.2 |
in electronic form, it shall be executed by or on behalf of the appointor or otherwise authenticated by the appointor in a manner satisfactory to the Board.
|
76.2 |
Subject as provided in this Article, in the case of an appointment of proxy purporting to be executed on behalf of a corporation by an officer of that corporation it
shall be assumed, unless the contrary is shown, that such officer was duly authorised to do so on behalf of that corporation without further evidence of that authorisation.
|
76.3 |
The Board may (but need not) allow proxy appointments to be made in electronic form, and if it does it may make such appointments subject to such stipulations, conditions
or restrictions, and require such evidence of valid execution or authentication, as the Board thinks fit.
|
76.4 |
A proxy need not be a member of the Company.
|
77. |
TIMES FOR DEPOSIT OF AN APPOINTMENT OF PROXY
|
77.1 |
The appointment of a proxy must, by such time as the Board may fix in accordance with the Statutes:
|
|
77.1.1 |
if in hard copy form, be deposited at the Office (or at such other address within the United Kingdom and/or the United States as is specified for the purpose in the
notice convening the meeting or in the instrument); or
|
|
77.1.2 |
if in electronic form, be received at such address has been specified for the purpose of receiving documents or information by electronic means:
|
|
(a) |
in the notice convening the meeting, or
|
|
(b) |
in any instrument of proxy sent out by the Company in relation to the meeting, or
|
|
(c) |
in any invitation to appoint a proxy by electronic means issued by the Company in relation to the meeting;
|
77.2 |
Except as provided otherwise in any terms and conditions issued, endorsed or adopted by the Board to facilitate the appointment by members of more than one proxy to
exercise all or any of the member’s rights at a meeting, when two or more valid but differing appointments of proxy are deposited, delivered or received in respect of the same share for use at the same meeting, the one which is last
deposited, delivered or received (regardless of its date or of the date of execution) shall be treated as replacing the others as regards that share; if the Company is unable to determine which was last deposited, delivered or
received, none of them shall be treated as valid in respect of that share. The deposit, delivery or receipt of an appointment of a proxy shall not preclude a member from attending and voting in person at the meeting or poll concerned.
|
78. |
FORM OF APPOINTMENT OF PROXY
|
78.1 |
The appointment of a proxy shall be in any usual form or any other form that the Board may approve and may be on a standing basis without reference to specific meetings.
In the case of a proxy appointment relating to shares held by a Depositary, the appointment may take the form of a voter instruction form to be provided to the Company by third parties on behalf of the Depositary. The Board may, if it
thinks fit but subject to the Statutes, include with the notice of any meeting forms of appointment of proxy for use at the meeting.
|
78.2 |
Appointments of proxies may specify how the proxy appointed under them is to vote (or that the proxy is to abstain from voting) on one or more resolutions, but the
Company shall not be obliged to ascertain that any proxy has complied with those or any other instructions given by the appointor and no decision on any resolution shall be vitiated by reason only that any proxy has not done so.
|
78.3 |
A member may appoint more than one proxy in relation to a meeting, provided that each proxy is appointed to exercise the rights attached to a different share or shares
held by the member. A proxy shall be entitled to appoint another person as proxy in turn in relation to the relevant shares, with all such rights as the proxy has, including the right to appoint a proxy in turn, but so that a proxy
appointed by another proxy in this way shall comply with any instructions on voting that were binding on the other proxy. The appointment of a proxy shall be deemed to include all the relevant member’s rights to attend and speak at
the meeting and vote in respect of the share or shares concerned (but so that each proxy appointed by that member may vote on a show of hands notwithstanding that the member would only have had one vote if voting in person, and may
demand or join in demanding a poll as if the proxy held the share or shares concerned) and, except to the extent that the appointment comprises instructions to vote in a particular way, to permit the proxy to vote or abstain as the
proxy thinks fit on any business properly dealt with at the meeting, including a vote on any amendment of a resolution put to the meeting or on any motion to adjourn.
|
78.4 |
On a vote on a resolution on a show of hands at a meeting, every proxy present who has been duly appointed by one or more members entitled to vote on the resolution has
one vote, except that if the proxy has been duly appointed by more than one member entitled to vote on the resolution and:
|
|
78.4.1 |
has been instructed by one or more of those members to vote for the resolution and by one or more other of those members to vote against it, or
|
|
78.4.2 |
has been instructed to vote the same way (either for or against) on the resolution by all of those members except those who have given the proxy discretion as to how to
vote on the resolution
|
78.5 |
The appointment shall, unless the contrary is stated in it, be as valid for any adjournment of the meeting as for the meeting to which it relates (regardless of any
change of date, time or place effected in accordance with these Articles).
|
79. |
VALIDITY OF PROXY
|
79.1 |
Subject to the Statutes, a vote given or poll demanded by proxy shall be valid, notwithstanding the previous determination of the proxy’s authority unless notice of such
determination was received by the Company at the Office (or at such other place at which the appointment of proxy was duly deposited or, where the appointment of the proxy was in electronic form, at the address at which such
appointment was duly received) not later than the last time at which an appointment of proxy should have been deposited, delivered or received in order to be valid for use at the meeting at which the poll was ordered or for use in a
poll ordered to be held after the meeting.
|
79.2 |
Unless the form of proxy otherwise provides, or such expiry would otherwise be inconsistent with its terms, a valid appointment of a proxy shall cease to be valid after
the expiration of 12 months from the date of its execution except that it will remain valid after that for the purpose of a poll or an adjourned meeting if the meeting at which the poll was ordered or adjournment moved was held within
the 12-month period.
|
80. |
CORPORATE REPRESENTATIVES
|
80.1 |
A corporation that is a member may, by resolution of its directors or other governing body, authorise a person or persons to act as its representative or representatives
at any meeting of the Company, or at any separate meeting of the holders of any class of shares (a “
representative
”).
|
80.2 |
Subject to Article 80.3, a representative is entitled to exercise (on behalf of the corporation) the same powers as the corporation could exercise if it were an
individual member.
|
80.3 |
Where a corporation authorises more than one representative and more than one representative purports to exercise a power under Article 80.2 in respect of the same
shares:
|
|
80.3.1 |
if they purport to exercise the power in the same way as each other, the power is treated as exercised in that way; or
|
|
80.3.2 |
if they do not purport to exercise the power in the same way as each other, the power is treated as not exercised.
|
80.4 |
A Director, the secretary or other person authorised for the purpose by the secretary may require a representative to produce a certified copy of the resolution of
authorisation before permitting the representative to exercise the representative’s powers.
|
81. |
NUMBER OF DIRECTORS
|
82. |
NO SHAREHOLDING QUALIFICATION FOR DIRECTORS
|
83. |
ORDINARY REMUNERATION
|
83.1 |
Subject to any contract with the Company or any subsidiary of the Company, the Board or a committee authorised by the Board may determine the remuneration of each
Executive Director. That remuneration may consist of salary, bonuses, benefits in kind or any other elements.
|
83.2 |
Each of the Directors (other than any Director who for the time being holds an executive office or employment with the Company or a subsidiary of the Company) shall be
paid a fee for his or her services at such rate as may from time to time be determined by the Board or by a committee authorised by the Board.
|
84. |
ADDITIONAL REMUNERATION FOR EXTRA SERVICES
|
85. |
EXPENSES OF DIRECTORS
|
85.1 |
The Company may pay a Director (in addition to any remuneration) all reasonable expenses (including travelling and accommodation expenses) properly incurred by the
Director:
|
|
85.1.1 |
in attending meetings of the Company, the Board, or a committee of the Board;
|
|
85.1.2 |
on the business of the Company; or
|
|
85.1.3 |
in carrying out duties as a Director.
|
86. |
EXECUTIVE DIRECTORS
|
86.1 |
The Board or any committee authorised by the Board may from time to time appoint one or more of its body to hold any employment or executive office with the Company for
such period (subject to the Statutes) and on such other terms as the Board or any committee authorised by the Board may decide and may revoke or terminate any appointment so made. Any revocation or termination of the appointment
shall be without prejudice to any claim for damages that the Director may have against the Company or that the Company may have against the Director for any breach of any contract of service between the Director and the Company. A
Director so appointed may be paid such remuneration (whether by way of salary, commission, participation in profits or otherwise) in such manner as the Board or any committee authorised by the Board may decide.
|
87. |
GENERAL POWERS OF THE COMPANY VESTED IN THE BOARD
|
87.1 |
The business of the Company shall be managed by the Board, which, subject to these Articles and any direction given to the Company by special resolution, may exercise all
the powers of the Company. No alteration of these Articles and no such direction shall invalidate any prior act of the Board which would have been valid if that alteration had not been made or that direction had not been given.
|
87.2 |
The powers given by this Article shall not be limited by any special power given to the Board by any other Article.
|
88. |
AGENTS
|
88.1 |
The Board may, by power of attorney or otherwise, appoint any person to be the agent of the Company on such terms (including terms as to remuneration) and subject to such
conditions as it may decide and may delegate to any person so appointed any of its powers, authorities and discretions (with power to sub-delegate). The Board may remove any person so appointed and may revoke or vary the delegation
but no person dealing in good faith and without notice of the revocation or variation shall be affected by it.
|
88.2 |
The power to delegate contained in this Article shall be effective in relation to the powers, authorities and discretions of the Board generally and shall not be limited
by the fact that in certain Articles, but not in others, express reference is made to particular powers, authorities or discretions being exercised by the Board or by committee authorised by the Board.
|
89. |
DELEGATION TO INDIVIDUAL DIRECTORS
|
89.1 |
The Board may entrust to and confer upon a Director any of its powers, authorities and discretions (with power to sub-delegate) upon such terms (subject to the Statutes)
and subject to such conditions and with such restrictions as it may decide. The Board may from time to time revoke or vary all or any of them but no person dealing in good faith and without notice of the revocation or variation shall
be affected by it.
|
89.2 |
The power to delegate contained in this Article shall be effective in relation to the powers, authorities and discretions of the Board generally and shall not be limited
by the fact that in certain Articles, but not in others, express reference is made to particular powers, authorities or discretions being exercised by the Board or by a committee authorised by the Board.
|
90. |
DELEGATION TO COMMITTEES
|
90.1 |
The Board may delegate any of its powers, authorities and discretions (with power to sub-delegate) to any committee consisting of such person or persons as it thinks fit
(whether a member or members of its body or not) provided that the majority of the members of the committee are Directors. Subject to any restriction on sub-delegation imposed by the Board, any committee so formed may exercise its
power to sub-delegate by sub-delegating to any person or persons (whether or not a member or members of the Board or of the committee). Subject to any regulations imposed on it by the Board, the proceedings of any committee consisting
of two or more members shall be governed by the provisions in these Articles for regulating proceedings of the Board so far as applicable except that no meeting of that committee shall be quorate for the purpose of exercising any of
its powers, authorities or discretions unless a majority of the committee present at the meeting are Directors. A member of a committee shall be paid such remuneration (if any) in such manner as the Board may decide, and, in the case
of a Director, either in addition to or in place of his or her ordinary remuneration as a Director.
|
90.2 |
The power to delegate contained in this Article shall be effective in relation to the powers, authorities and discretions of the Board generally and shall not be limited
by the fact that in certain of these Articles, but not in others, express reference is made to particular powers, authorities or discretions being exercised by the Board or by a committee authorised by the Board.
|
91. |
POWER TO ESTABLISH LOCAL BOARDS ETC
|
91.1 |
The Board may:
|
|
91.1.1 |
establish any divisional, departmental, regional, local or area boards, divisions or managing agencies for introducing, conducting or managing all or any of the business
or affairs of the Company, either in the United Kingdom or elsewhere;
|
|
91.1.2 |
make regulations for the proceedings and activities of any such establishment (but so that otherwise its proceedings shall be governed by those of these Articles which
regulate proceedings of the Board to the extent that they are capable of applying to it);
|
|
91.1.3 |
appoint any persons (whether Directors or not) as regional directors, local directors, divisional directors, area directors, advisory directors, managers or agents or to
serve in any other capacity in connection with any such establishment, and may fix their remuneration;
|
|
91.1.4 |
delegate to any such establishment and to any such appointee (including anyone appointed before this Article was adopted) any of the powers, authorities and discretions
vested in the Board, with power to sub-delegate;
|
|
91.1.5 |
authorise any such appointees to fill any vacancies in any such establishment and to act notwithstanding vacancies,
|
92. |
PROVISION FOR EMPLOYEES
|
93. |
THE COMPANY’S NAME
|
94. |
BORROWING POWERS
|
95. |
RETIREMENT OF DIRECTORS
|
96. |
POSITION OF RETIRING DIRECTOR
|
97. |
POWER OF THE COMPANY TO APPOINT DIRECTORS
|
97.1 |
Subject to these Articles, the Company may by ordinary resolution at an annual general meeting appoint any person who is willing to act to be a Director, either to fill a
vacancy on or as an addition to the existing Board. A resolution for the appointment of two or more persons as Directors by a single resolution shall be void unless a resolution that it shall be so proposed has first been agreed to by
the meeting without any vote being given against it.
|
97.2 |
Subject to the Statutes, the Company cannot validly elect or re-elect a person as a Director unless:
|
|
97.2.1 |
he or she is proposed or approved by the Nominating Committee; or
|
|
97.2.2 |
he or she is proposed by one or more members or beneficial owners (provided that such members or beneficial owners have held or been owners of at least 5% of the ordinary
shares of the Company for at least three years and that none is the person thus proposed) (a “
Conforming Nomination
”), not later than the close
of business on the 90th day, nor earlier than the close of business on the 120th day, in advance of the anniversary of the previous year’s annual general meeting; provided, however, that (i) in the event that the date of the annual
general meeting is more than 30 days preceding the anniversary of the previous year’s annual general meeting or more than 70 days after the anniversary of the previous year’s annual general meeting, a Conforming Nomination must be so
delivered not earlier than the close of business on the 120th day prior to such annual general meeting and not later than the close of business on the later of the 90th day prior to such annual general meeting or the tenth day
following the date on which Public Disclosure of the date of such annual general meeting is first made by the Company; and (ii) in relation to the first annual general meeting of the Company occurring after 1 January 2019, references
to the anniversary date of the preceding year’s annual general meeting shall be to 23 May 2018.
|
97.3 |
For the purposes of this rule, a Conforming Nomination must include each of the following:
|
|
97.3.1 |
a proposal of the person (the candidate) as Director by a member or beneficial owner setting out:
|
|
(a) |
the name, business address and residential address of the candidate;
|
|
(b) |
the principal occupation or employment of the candidate;
|
|
(c) |
the number of shares in the Company which are held by and beneficially owned by the candidate (if any); and
|
|
(d) |
such other information concerning the candidate as would be required to be disclosed in a proxy statement soliciting proxies for the election of such candidate as a
Director in an election contest (even if an election contest is not involved), or that is otherwise required to be disclosed, under the rules of the United States Securities and Exchange Commission, regardless of whether the Company
is subject to such rules or not;
|
|
97.3.2 |
in respect of the member and the beneficial owner, if any, proposing the candidate, a statement containing:
|
|
(a) |
the name and address of the member as it appears on the Register, and of the beneficial owner of the relevant shares, if any, on whose behalf the nomination is being
made;
|
|
(b) |
the class and number of shares in the Company which are held by the member (including any shares beneficially owned) and by the beneficial owner of the relevant shares,
if any, on whose behalf the proposal of the candidate is being made, as at the date of the Conforming Nomination;
|
|
(c) |
a representation by the member that it will notify the Company in writing of the class and number of shares held by it (including any shares beneficially owned) as of the
record date for the meeting promptly following the record date;
|
|
(d) |
the identity of any control person and any information that would be required in Items 2, 3 and 4 of Schedule 13D of the Exchange Act, regardless of whether such Schedule
13D is required to be filed with the United States Securities and Exchange Commission or not;
|
|
(e) |
a description of any agreement, arrangement or understanding with respect to such proposal between or among the proposing member and any Affiliate of the member, and any
others (including their names) acting in concert with any of the foregoing, including the candidate, and a representation that the proposing member will notify the Company in writing of any such agreement, arrangement or understanding
in effect as of the record date for the meeting promptly following the later of the record date or the date notice of the record date is first Publicly Disclosed;
|
|
(f) |
a description of any agreement, arrangement or understanding (including any derivative or short positions, profit interests, options, hedging transactions, and borrowed
or loaned shares) that has been entered into as of the date of the Conforming Nomination by, or on behalf of, the proposing member or any Affiliate of the member, whether or not such instrument or right shall be subject to settlement
in underlying shares of the Company, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of the proposing member or any Affiliate of this
member with respect to shares of the Company, and a representation that the proposing member will notify the Company in writing of any such agreement, arrangement or understanding in effect as of the record date for the meeting
promptly following the later of the record date or the date notice of the record date is first Publicly Disclosed;
|
|
(g) |
a representation that the proposing member is a registered holder of shares of the Company entitled to vote at the meeting and intends to appear in person or by proxy at
the meeting to support the nomination of the nominee as a Director or is beneficial owner of shares of the Company entitled to vote at the meeting and intends to appear by proxy at the meeting to support the nomination of the nominee
as a Director;
|
|
(h) |
a representation whether the proposing member or the beneficial owner, if any, intends or is part of a group which intends:
|
|
(i) |
to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Company’s issued shares required to approve the proposal; and/or
|
|
(ii) |
otherwise to solicit proxies from members in support of the proposal;
|
|
(i) |
any other information relating to such proposing member or beneficial owner, if any, required to be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for, as applicable, the election of Directors in an election contest pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder,
whether or not the Company is subject to such rules; and
|
|
97.3.3 |
a consent to act as a Director and to be named in the notice of meeting signed by the candidate.
|
98. |
POWER OF THE BOARD TO APPOINT DIRECTORS
|
99. |
COMPANY’S POWER TO REMOVE A DIRECTOR AND APPOINT ANOTHER IN HIS OR HER PLACE
|
100. |
VACATION OF OFFICE BY DIRECTORS
|
100.1 |
Without prejudice to the provisions for retirement or otherwise contained in these Articles and subject to any agreement to which the Company and any shareholder is a
party, the office of a Director shall be vacated as soon as:
|
|
100.1.1 |
notification is received by the Company from the Director that he or she is resigning from office as Director, and such resignation has taken effect in accordance with
its terms;
|
|
100.1.2 |
a bankruptcy order is made against the Director or the Director makes any arrangement or composition with his or her creditors generally in satisfaction of his or her
debts;
|
|
100.1.3 |
a registered medical practitioner who is treating the Director gives a written opinion to the Company stating that the Director has become physically or mentally
incapable of acting as a director and may remain so for more than three months or, by reason of his or her mental health, a court makes an order which wholly or partly prevents the Director from personally exercising any powers or
rights that he or she would otherwise have;
|
|
100.1.4 |
without the permission of the Board, the Director is absent from three consecutive meetings of the Board and the Board resolves that his or her office is vacated;
|
|
100.1.5 |
the Director ceases to be a Director by virtue of the Statutes or is prohibited by law or, if applicable, any rules of the NYSE from being a Director or is removed from
office under these Articles; or
|
|
100.1.6 |
his or her contract of service or letter of appointment as a Director expires or is terminated without being renewed within 14 days.
|
101. |
TRANSACTIONS, OFFICES, EMPLOYMENT AND INTERESTS
|
101.1 |
Subject to the Statutes and the terms of any authorisation given under Article 102, a Director notwithstanding his or her office:
|
|
101.1.1 |
may hold any other office or place of profit with the Company (except that of Auditors) in conjunction with the office of Director and may act by himself or herself or
through his or her firm in a professional capacity for the Company (otherwise than as Auditors) and in either such case on such terms as to remuneration (whether by way of salary, commission, participation in profits or otherwise) and
otherwise as the Board may determine, and any such remuneration shall be either in addition to or in lieu of any remuneration provided for, by or pursuant to any other Article;
|
|
101.1.2 |
may be interested in shares or other securities issued by the Company;
|
|
101.1.3 |
may be a director or other officer of, or employed by, or a party to any contract with, or interested in shares or other securities issued by, any undertaking in the same
group as the Company or promoted by the Company or by any such undertaking, or in which the Company or any such undertaking is otherwise interested or as regards which the Company or any such undertaking has any powers of appointment;
|
|
101.1.4 |
shall not, by reason of his or her office, be accountable to the Company for any remuneration or benefit which he or she derives from any such office or employment or
from any such contract or from any interest in such undertaking and no such office, employment or contract shall be liable to be avoided on the ground of any such interest or benefit and nor shall the receipt of such remuneration or
benefit constitute a breach of his or her duty under the Companies Act 2006 not to accept benefits from third parties;
|
|
101.1.5 |
shall not be in breach of his or her duties as a director by reason only of the Director’s excluding himself or herself from the receipt of information, or from
participation in decision-making or discussion (whether at meetings of the Directors or otherwise), that will or may relate to any such office, employment, contract or interest; and
|
|
101.1.6 |
shall not be required to disclose to the Company, or use in relation to the Company’s affairs, any confidential information obtained by him or her in connection with any
such office, employment, contract or interest if his or her doing so would result in a breach of a duty or an obligation of confidence owed by the Director in that connection
|
101.2 |
The Board may cause any voting power conferred by the shares in any other company held or owned by the Company or any power of appointment to be exercised in such manner
in all respects as it thinks fit, including the exercise of either of such powers in favour of a resolution appointing the Directors, or any of them, to be directors or officers of the other company, or in favour of the payment of
remuneration to the directors or officers of the other company.
|
101.3 |
Except as otherwise provided by these Articles, a Director shall not vote on, or be counted in the quorum in relation to, any resolution of the Board or of a committee of
the Board concerning any matter in which the Director has to his or her knowledge, directly or indirectly, an interest (other than his or her interest in shares or debentures or other securities of, or otherwise in or through, the
Company) or duty which (together with any interest of a person connected with the Director) is material and, if the Director shall do so, his or her vote shall not be counted. A Director shall be entitled to vote on and be counted in
the quorum in respect of any resolution concerning any of the following matters:
|
|
101.3.1 |
the giving to him or her of any guarantee, security or indemnity in respect of money lent or obligations incurred by him or her or by any other person at the request of
or for the benefit of, the Company or any of its subsidiary undertakings;
|
|
101.3.2 |
the giving by the Company of any guarantee, security or indemnity to a third party in respect of a debt or obligation of the Company or any of its subsidiary undertakings
for which the Director has assumed responsibility in whole or in part and whether alone or jointly with others under a guarantee or indemnity or by the giving of security;
|
|
101.3.3 |
his or her subscribing or agreeing to subscribe for, or purchasing or agreeing to purchase, any shares, debentures or other securities of the Company or any of its
subsidiary undertakings as a holder of securities, or his or her being, or intending to become, a participant in the underwriting or sub-underwriting of an offer of any such shares, debentures, or other securities by the Company or
any of its subsidiary undertakings for subscription, purchase or exchange;
|
|
101.3.4 |
any contract concerning any company (not being a company in which the Director owns 1% or more (as defined in this Article)) in which he or she is interested, directly or
indirectly, and whether as an officer, member, creditor or otherwise;
|
|
101.3.5 |
any arrangement for the benefit of employees of the Company or any of its subsidiary undertakings under which the Director benefits in a similar manner as the employees
and which does not accord to any Director as such any privilege or advantage not accorded to the employees to whom the arrangement relates;
|
|
101.3.6 |
any contract concerning any insurance which the Company is empowered to purchase or maintain for, or for the benefit of, any Directors or for persons who include
Directors; or
|
|
101.3.7 |
any indemnity permitted by these Articles (whether in favour of the Director or others as well) against any costs, charges, expenses, losses and liabilities sustained or
incurred by him or her as a director of the Company or of any of its subsidiary undertakings, or any proposal to provide funds to meet any expenditure incurred or to be incurred by the Director in defending himself or herself in any
criminal or civil proceeding in connection with any alleged negligence, default, breach of duty or breach of trust by him or her in relation to the Company or any of its subsidiary undertakings, or any investigation, or action
proposed to be taken, by a regulatory authority in that connection, or for the purposes of any application for relief under the Companies Act 2006, or in order to enable the Director to avoid incurring such expenditure.
|
101.4 |
A Director shall not vote on, or be counted in the quorum in relation to, any resolution of the Board concerning his or her own appointment, or the settlement or
variation of the terms or the termination of his or her own appointment, as the holder of any office or place of profit with the Company or any company in which the Company is interested but, where proposals are under consideration
concerning the appointment, or the settlement or variation of the terms or the termination of the appointment, of two or more Directors to offices or places of profit with the Company or any company in which the Company is interested,
a separate resolution may be put in relation to each Director and in that case each of the Directors concerned shall be entitled to vote on and be counted in the quorum in relation to each resolution which does not concern either: (a)
his or her own appointment or the settlement or variation of the terms or the termination of his or her own appointment; or (b) the appointment of another Director to an office or place of profit with a company in which the Company is
interested and in which the Director seeking to vote or be counted in the quorum is interested by virtue of owning of 1% or more (as defined in this Article).
|
101.5 |
A company shall be deemed to be a company in which a Director owns 1% or more if and so long as the Director is directly or indirectly the holder of or beneficially
interested in 1% or more of any class of the equity share capital of such company or of the voting rights available to members of such company. For this purpose, there shall be disregarded any shares held by a Director as bare or
custodian trustee and in which he or she has no beneficial interest, any shares comprised in a trust in which the Director’s interest is in reversion or remainder (if and so long as some other person is entitled to receive the income
from such trust) and any shares comprised in an authorised unit trust scheme in which the Director is interested only as a unit holder.
|
101.6 |
Where a company in which a Director owns 1% or more is materially interested in a contract, the Director shall also be deemed to be materially interested in that
contract.
|
101.7 |
For the purposes of this Article, an interest of a person who is, for any purpose of the Statutes, connected with a Director shall be treated as an interest of the
Director.
|
101.8 |
References in this Article to a contract include references to any proposed contract and to any transaction or arrangement whether or not constituting a contract.
|
101.9 |
If any question shall arise at any meeting of the Board as to the materiality of the interest of a Director (other than the chairman of the meeting) or as to the
entitlement of any Director (other than the chairman of the meeting) to vote or be counted in the quorum and the question is not resolved by his or her voluntarily agreeing to abstain from voting or not to be counted in the quorum,
the question shall be referred to the chairman of the meeting and the chairman’s ruling in relation to the Director concerned shall be conclusive except in a case where the nature or extent of the Director’s interest (so far as it is
known to the Director) has not been fairly disclosed to the Board. If any question shall arise in respect of the chairman of the meeting, the question shall be decided by resolution of the Board (for which purpose the chairman shall
be counted in the quorum but shall not vote on the matter) and the resolution shall be conclusive except in a case where the nature or extent of the interest of the chairman of the meeting (so far as it is known to him or her) has not
been fairly disclosed to the Board.
|
101.10 |
Subject to the Statutes, the Company may by ordinary resolution suspend or relax the provisions of this Article to any extent or ratify any contract not properly
authorised by reason of a contravention of this Article.
|
102. |
CONFLICTS OF INTEREST REQUIRING BOARD AUTHORISATION
|
102.1 |
The Board may, provided the quorum and voting requirements set out below are satisfied, authorise any matter that would otherwise involve a Director breaching his or her
duty under Section 175 of the Companies Act 2006 to avoid conflicts of interest.
|
102.2 |
Any Director (including the Director concerned) may propose that the Director concerned be authorised in relation to any matter the subject of such a conflict. Such
proposal and any authority given by the Board shall be effected in the same way that any other matter may be proposed to and resolved upon by the Board under the provisions of these Articles, except that the Director concerned and any
other Director with a similar interest:
|
|
102.2.1 |
shall not count towards the quorum at the meeting at which the conflict is considered;
|
|
102.2.2 |
may, if the other members of the Board so decide, be excluded from any Board meeting while the conflict is under consideration; and
|
|
102.2.3 |
shall not vote on any resolution authorising the conflict except that, if the Director does vote, the resolution will still be valid if it would have been agreed to if
his or her vote had not been counted.
|
102.3 |
Where the Board gives authority in relation to such a conflict:
|
|
102.3.1 |
the Board may (whether at the time of giving the authority or at any time or times subsequently) impose such terms upon the Director concerned as it may determine,
including, without limitation, the exclusion of that Director from the receipt of information, or participation in any decision-making or discussion (whether at meetings of the Board or otherwise) related to the conflict;
|
|
102.3.2 |
the Director concerned will be obliged to conduct himself or herself in accordance with any terms imposed by the Board from time to time in relation to the conflict but
will not be in breach of his or her duties as a Director by reason of his or her doing so;
|
|
102.3.3 |
the authority may provide that, where the Director concerned (otherwise than by virtue of his or her position as a director of the Company) obtains information that is
confidential to a third party, the Director will not be obliged to disclose that information to the Company, or to use the information in relation to the Company’s affairs, where to do so would amount to a breach of that confidence;
|
|
102.3.4 |
the authority may also provide that the Director concerned shall not be accountable to the Company for any benefit that he or she receives as a result of the conflict;
|
|
102.3.5 |
the receipt by the Director concerned of any remuneration or benefit as a result of the conflict shall not constitute a breach of the duty under the Companies Act 2006
not to accept benefits from third parties;
|
|
102.3.6 |
the terms of the authority shall be recorded in writing (but the authority shall be effective whether or not the terms are so recorded); and
|
|
102.3.7 |
the Board may withdraw the authority at any time.
|
103. |
DIRECTORS’ GRATUITIES AND PENSIONS
|
103.1 |
The Board or any committee authorised by the Board may exercise all the powers of the Company to provide benefits, whether by the payment of gratuities, pensions,
annuities, allowances, bonuses or by insurance or otherwise, for any Director or former Director who holds or who has held but no longer holds any executive office, other office, place of profit or employment with the Company or with
any body corporate which is or has been a subsidiary undertaking of the Company or a predecessor in business of the Company or of any such subsidiary undertaking, and for any member of his or her family (including a spouse and a
former spouse) or any person who is or was dependent on him or her, and may (as well before as after he or she ceases to hold such office, place of profit or employment) establish, maintain, support, subscribe to and contribute to any
scheme, trust or fund for the benefit of all or any such persons and pay premiums for the purchase or provision of any such benefits. The Board or any committee authorised by the Board may procure any of these matters to be done by
the Company either alone or in conjunction with any other person.
|
103.2 |
No Director or former Director shall be accountable to the Company or the members for any benefit provided pursuant to this Article and the receipt of any such benefit
shall not disqualify any person from being or becoming a Director.
|
104. |
BOARD MEETINGS
|
105. |
NOTICE OF BOARD MEETINGS
|
105.1 |
The Company shall procure that at least four Board meetings are held in each calendar year at regular intervals at the Company’s registered office (or such other venue as
may be determined by the Chairman or the Company’s Chief Executive Officer, acting reasonably, from time to time) (each such meeting being a “
Quarterly
Meeting
”).
|
105.2 |
Notice of a Board meeting shall be deemed to be properly given to a Director if it is sent in writing or in electronic form to the Director at his or her last known
address or any other address given by the Director to the Company for this purpose (i) in the case of a Quarterly Meeting at least five business days, and (ii) in respect of other Board meetings (excluding a Quarterly Meeting) at
least two business days, in advance of the meeting (“
business days
” being days, other than Saturdays or Sundays, on which banks are generally
open for non-automated business in London and New York).
|
105.3 |
If the Chairman or the Company’s Chief Executive Officer, acting reasonably, from time to time determines that a situation has arisen or is reasonably likely to arise
that constitutes an “emergency” for the Company, then he or she may call a Board meeting to discuss and consider the passing of resolutions in respect of that emergency on such notice as he or she reasonably determines is appropriate.
|
105.4 |
The Company shall send to each Director at the time of providing notice of a Board meeting or, in the case of an “emergency meeting” called in accordance with this
Article 105, as soon as reasonably practicable prior to such meeting, an agenda of the business to be transacted at such meeting together with all papers to be presented to the meeting.
|
105.5 |
Notice of a Board meeting need not be given to Directors who attend that meeting and waive their entitlement to notice of that meeting at the meeting or Directors who do
not attend that meeting and waive their entitlement by giving notice to that effect to the Company not more than seven days after the date on which the meeting is held. Where such a waiver of notice is given by a Director who did not
attend that meeting after the meeting has been held, that delayed waiver does not affect the validity of the meeting, or of any business conducted at it.
|
106. |
VOTING
|
107. |
QUORUM
|
107.1 |
Subject to any agreement to which the Company and any shareholder is a party, the quorum necessary for the transaction of the business of the Board may be fixed by the
Board and unless so fixed at any other number shall be two provided that, for the purposes of any meeting held pursuant to Article 102 to authorise a Director’s conflict, if there is only one Director besides the Director concerned
and Directors with a similar interest, the quorum shall be one.
|
107.2 |
Subject to these Articles, any Director who ceases to be a Director at a Board meeting may continue to be present and to act as a Director and be counted in the quorum
until the termination of the Board meeting if no other Director objects and if otherwise a quorum of Directors would not be present.
|
108. |
BOARD VACANCIES BELOW MINIMUM NUMBER
|
109. |
APPOINTMENT OF CHAIRMAN
|
110. |
COMPETENCE OF THE BOARD
|
111. |
PARTICIPATION IN MEETINGS BY TELEPHONE
|
112. |
WRITTEN RESOLUTIONS
|
112.1 |
A resolution in writing signed by:
|
|
112.1.1 |
all the Directors entitled to receive notice of a meeting of the Board , if that number is sufficient to constitute a quorum; or
|
|
112.1.2 |
by all the members of a committee of the Board
|
113. |
COMPANY BOOKS
|
113.1 |
The Board shall cause minutes to be made in books kept for the purpose of recording:
|
|
113.1.1 |
all appointments of officers made by the Board;
|
|
113.1.2 |
all proceedings at meetings of the Company, of the holders of any class of shares in the Company and of the Board and of committees of the Board, including the names of
the Directors or members of a committee of the Board present at each such meeting.
|
113.2 |
Subject to the Statutes, any such minutes, if purporting to be signed by the chairman of the meeting at which the appointments were made or proceedings held or by the
chairman of the next succeeding meeting, shall be sufficient evidence of the facts stated in them without any further proof.
|
114. |
VALIDITY OF ACTS OF THE BOARD OR A COMMITTEE
|
115. |
APPOINTMENT, REMOVAL AND RESIGNATION
|
115.1 |
Any Director (other than an alternate Director) may appoint any other Director to be his or her alternate and may revoke any such appointment, in either case by notice in
writing delivered to the Secretary or delivered in any other manner (including by electronic means) approved by the Board.
|
115.2 |
An alternate Director shall be entitled to receive notice of all meetings of the Board or of committees of the Board of which his or her appointor is a member, to attend
and vote and be counted in the quorum as a Director at any such meeting at which the appointor is not personally present, and generally, in the absence of his appointor, at the meeting to exercise and discharge all the functions,
powers and duties of the appointor as a Director. A Director present at a meeting of the Board or committee of the Board and appointed alternate for another Director shall have an additional vote for each of his or her appointors
absent from such meeting (but shall count as one only for the purpose of determining whether a quorum is present).
|
115.3 |
An alternate Director shall cease to be an alternate Director if he or she resigns (whether as a Director or as an alternate) or if for any reason his or her appointment
as an alternate or as a Director is revoked or if his or her appointor ceases to be a Director; but, if a Director retires by rotation or otherwise but is reappointed or deemed to have been reappointed at the meeting at which he or
she retires, any appointment of an alternate Director made by the Director which was in force immediately prior to the Director’s retirement shall continue after the Director’s reappointment as if he or she had not retired.
|
115.4 |
An alternate Director shall be deemed an officer of the Company and shall be subject to these Articles relating to Directors (except as regards power to appoint an
alternate and remuneration) and an alternate Director shall not be deemed the agent of his or her appointor and shall alone be responsible to the Company for his or her acts and defaults. An alternate Director may be interested in and
benefit from contracts, arrangements, transactions and other matters or situations and be paid expenses and indemnified, and accept benefits from third parties, to the same extent as if he or she were a Director but, except to the
extent that his or her appointor directs the payment to the alternate of part or all of the remuneration which would otherwise be payable to the appointor, he or she shall not be entitled to any remuneration from the Company for
acting in that capacity.
|
116. |
APPOINTMENT AND REMOVAL OF COMPANY SECRETARY
|
116.1 |
Subject to the Statutes, the Secretary shall be appointed by the Board at such remuneration and upon such terms as it thinks fit. If thought fit, two or more persons may
be appointed as joint Secretaries with the power to act jointly and severally. Any Secretary so appointed may be removed by the Board.
|
116.2 |
The Board may from time to time appoint an assistant or deputy secretary who, during such time as there may be no Secretary or no Secretary capable of acting, may act as
Secretary and do any act authorised or required by these Articles or by law to be done by the Secretary. The signature of any document as Secretary by such assistant or deputy secretary shall be conclusive evidence (without
invalidating that signature for any purpose) that at the time of signature there was no Secretary or no Secretary capable of acting.
|
117. |
USE OF SEAL
|
118. |
COMPANY MAY DECLARE DIVIDENDS
|
119. |
BOARD MAY PAY DIVIDENDS
|
120. |
CALCULATION AND CURRENCY OF DIVIDENDS
|
120.1 |
Except in so far as the rights attaching to any share otherwise provide:
|
|
120.1.1 |
all dividends shall be declared and paid according to the amounts paid up on the shares on which the dividend is paid, but (for the purposes of this Article only) no
amount paid up on a share in advance of calls shall be treated as paid up on the share;
|
|
120.1.2 |
all dividends shall be apportioned and paid proportionately to the amounts paid up on the shares during any portion or portions of the period in respect of which the
dividend is paid; but, if any share is issued on terms providing that it shall rank for dividend as from a particular date, that share shall rank for dividend accordingly; and
|
|
120.1.3 |
any dividends or other monies payable on or in respect of any share may be declared in any currency or currencies, and paid in the same currency or currencies or in any
other currency or currencies, and subject to such charges to cover the costs of conversion, as the Board may determine, using where required such basis of conversion (including the rate and timing of conversion) as the Board decides.
|
121. |
WAIVER OF DIVIDENDS
|
122. |
NON-CASH DIVIDENDS
|
123. |
SCRIP DIVIDENDS
|
123.1 |
Subject to the Statutes, the Board may offer the holders of ordinary shares the right to elect to receive new ordinary shares, credited as fully paid, instead of cash for
all or part (as determined by the Board) of any dividend. The following provisions shall apply:
|
|
123.1.1 |
the Board may specify a particular dividend or dividends, or may specify all or any dividends, declared or paid within a specified period;
|
|
123.1.2 |
the basis of allotment to each entitled holder of ordinary shares shall be such number of new ordinary shares credited as fully paid as have a value as nearly as possible
equal to (but not greater than) the amount of the dividend (disregarding any tax credit) which the holder has elected to forgo. For this purpose, the “value” of an ordinary share shall be deemed to be whichever is the greater of its
nominal value and the average of the middle market quotations for the Company’s ordinary shares on the NYSE on the day on which the shares are first quoted “ex” the relevant dividend and the four subsequent dealing days or in such
other manner as may be determined by the Board. A certificate or report by the Auditors as to the amount of the value in respect of any dividend shall be conclusive evidence of that amount;
|
|
123.1.3 |
no fraction of an ordinary share shall be allotted and if any holder of ordinary shares would otherwise be entitled to fractions of a share, the Board may deal with the
fractions as it thinks fit, including (without limitation) determining that the whole or part of the benefit of fractional entitlements will be disregarded or accrue to the Company or that the value of fractional entitlements will be
accumulated on behalf of a member (without entitlement to interest) and applied in paying up new shares in connection with a subsequent offer by the Company of the right to receive shares instead of cash in respect of a future
dividend;
|
|
123.1.4 |
the Board shall not proceed with any election unless the Company has sufficient reserves or funds which may be capitalised to give effect to the election following the
Board’s determination of the basis of allotment;
|
|
123.1.5 |
on or as soon as practicable after announcing that the Board is to recommend or pay any dividend, the Board, if it intends to offer an election for that dividend, shall
also announce that intention and, having determined the basis of allotment, shall notify the entitled holders of ordinary shares (other than any in relation to whom an election mandate in accordance with this Article is subsisting) of
the right of election offered to them, and shall send with, or following, such notification, forms of election and shall specify the procedure to be followed and place at which, and the latest date and time by which, duly completed
forms of election must be received in order to be effective;
|
|
123.1.6 |
the dividend (or that part of the dividend in respect of which a right of election has been offered) shall not be payable on ordinary shares in respect of which an
election has been duly made (the “
elected shares
”) and instead additional ordinary shares shall be allotted to the holders of the elected shares
on the basis of allotment so determined. For such purpose, the Board shall capitalise, out of any amount standing to the credit of any reserve or fund (including the profit and loss account), whether or not it is available for
distribution, as the Board may determine, a sum equal to the aggregate nominal amount of the additional ordinary shares to be allotted on that basis and apply it in paying up in full the appropriate number of ordinary shares for
allotment and distribution to the holders of the elected shares on that basis;
|
|
123.1.7 |
the additional ordinary shares so allotted shall be allotted as of the record date for the dividend for which the right of election has been offered and shall rank pari
passu in all respects with the fully paid ordinary shares then in issue except that they will not rank for the dividend or other distribution entitlement in respect of which they have been issued. Unless the Board otherwise determines
(and subject always to the Regulations and the system’s rules), the ordinary shares so allotted shall be issued as shares in certificated form (where the ordinary shares in respect of which they have been allotted were in certificated
form at the Scrip Record Time) or as shares in uncertificated form (where the ordinary shares in respect of which they have been allotted were in uncertificated form at the Scrip Record Time) provided that if the Company is unable
under the system’s rules to issue ordinary shares in uncertificated form to any person, such shares shall be issued as shares in certificated form. For these purposes, the “
Scrip Record Time
” means such time on the record date for determining the entitlements of members to make elections as described in this Article, or on such other date as the Board may in its absolute
discretion determine.
|
123.2 |
The Board may establish or vary a procedure for election mandates whereby a holder of ordinary shares may elect concerning future rights of election offered to that
holder under this Article until the election mandate is revoked following that procedure.
|
123.3 |
The Board may exclude from any offer any holders of ordinary shares if it believes that it is necessary or expedient to do so in relation to any legal or practical
problems under the laws of, or the requirements of any regulatory body or stock exchange or other authority in, any territory or that for any other reason the offer should not be made to them.
|
124. |
ENHANCED SCRIP DIVIDENDS
|
124.1 |
Subject to the Statutes and without prejudice to the generality of Article 123, the Board may, in respect of any cash dividend or other distribution (or any part thereof)
declared or payable in relation to any financial year or period of the Company, offer to each holder of ordinary shares the right to elect to receive new ordinary shares, credited as fully paid, in respect of the whole or part of the
ordinary shares held by them instead of such cash dividend, on any basis but so that the entitlement of each holder of ordinary shares to such new ordinary shares shall be determined by the Board such that the value (determined on the
basis decided on by the Board) of the new ordinary shares concerned may exceed the cash amount that such holders of ordinary shares would otherwise have received by way of dividend and, in respect of such offer, that Article shall
take effect subject to this Article. Any offer made under this Article shall be an alternative to any offer made under that Article in respect of a particular cash dividend (but shall form part of any plan which is in operation
thereunder).
|
124.2 |
The Board may exclude from any offer any holders of ordinary shares if it believes that it is necessary or expedient to do so in relation to any legal or practical
problems under the laws of, or the requirements of any regulatory body or stock exchange or other authority in, any territory or that for any other reason the offer should not be made to them.
|
125. |
RIGHT TO DEDUCT AMOUNTS DUE ON SHARES FROM DIVIDENDS
|
126. |
NO INTEREST ON DIVIDENDS
|
127. |
PAYMENT PROCEDURE
|
127.1 |
All dividends and interest shall belong and be paid (subject to any lien of the Company) to those entitled members whose names shall be on the Register at the date at
which such dividend shall be declared or at the date on which such interest shall be payable respectively, or at such other date as the Company by ordinary resolution or the Board may determine notwithstanding any subsequent transfer
or transmission of shares.
|
127.2 |
The Company may pay any dividend, interest or other monies payable in cash in respect of shares by direct debit, bank transfer, cheque, dividend warrant, money order or
by any other method (including by electronic means) as the Board may consider appropriate.
|
127.3 |
Every such cheque, warrant or order shall be made payable to the person to whom it is sent, or to such other person as the holder or the joint holders may in writing
direct and may be sent by post or equivalent means of delivery directed to the registered address of the holder or, in the case of joint holders, to the registered address of the joint holder whose name stands first in the Register,
or to such person and to such address as the holder or joint holders may in writing direct.
|
127.4 |
Every such payment made by direct debit or bank transfer shall be made to the holder or joint holders or to or through such other person as the holder or joint holders
may in writing direct.
|
127.5 |
In respect of shares in uncertificated form, where the Company is authorised to do so by or on behalf of the holder or joint holders in such manner as the Board shall
from time to time consider sufficient, the Company may pay any such dividend, interest or other monies by means of the relevant system. Every such payment shall be made in such manner as may be consistent with the system’s rules and,
without prejudice to the generality of the foregoing, may include the sending by the Company or by any person on its behalf of an instruction to the Operator to credit the cash memorandum account of the holder or joint holders or, if
permitted by the Company, of such person as the holder or joint holders may in writing direct.
|
127.6 |
The Company shall not be responsible for any loss of any such cheque, warrant or order and any payment made in any manner permitted by these Articles shall be at the sole
risk of the holder or joint holders. Without prejudice to the generality of the foregoing, if any such cheque, warrant or order has been, or is alleged to have been, lost, stolen or destroyed, the Board may, on request of the person
entitled thereto, issue a replacement cheque, warrant or order subject to compliance with such conditions as to evidence and indemnity and the payment of out of pocket expenses of the Company in connection with the request as the
Board may think fit.
|
127.7 |
The issue of such cheque, warrant or order, the collection of funds from or transfer of funds by a bank in accordance with such direct debit or bank transfer or, in
respect of shares in uncertificated form, the making of payment in accordance with the system’s rules, shall be a good discharge to the Company.
|
128. |
RECEIPT BY JOINT HOLDERS
|
129. |
WHERE PAYMENT OF DIVIDENDS NEED NOT BE MADE
|
130. |
UNCLAIMED DIVIDENDS
|
131. |
CAPITALISATION OF PROFITS
|
131.1 |
Subject to the Statutes, the Board may resolve to capitalise all or any part of any undivided profits of the Company not required for paying any preferential dividend
(whether or not they are available for distribution) or all or any part of any sum standing to the credit of any reserve or fund (whether or not available for distribution).
|
131.2 |
Subject as provided below, the Board may appropriate the sum resolved to be capitalised to the members who would have been entitled to it if it were distributed by way of
dividend and in the same proportions and apply such sum on their behalf either in or towards paying up the amounts, if any, for the time being unpaid on any shares held by them respectively, or (subject to any subsisting special
rights previously conferred on any shares or class of shares) in paying up in full shares of any class or debentures of the Company of a nominal amount equal to that sum, and allot the shares or debentures credited as fully paid to
those members, or as they may direct, in those proportions, or partly in one way and partly in the other provided that:
|
|
131.2.1 |
the Company shall for the purposes of this Article be deemed to be such a member in relation to any shares held as treasury shares which, if not so held, would have
ranked for any such distribution by way of dividend, but only insofar as the appropriated sum is to be applied in paying up in full shares of the Company; and
|
|
131.2.2 |
the share premium account, the capital redemption reserve, and any reserve or fund representing profits which are not available for distribution may only be applied in
paying up in full shares of the Company.
|
131.3 |
The Board may authorise any person to enter on behalf of all the members concerned into an agreement with the Company providing for the allotment to them respectively,
credited as fully paid, of any shares or debentures to which they are entitled upon such capitalisation and any matters incidental thereto, any agreement made under such authority being binding on all such members.
|
131.4 |
If any difficulty arises concerning any distribution of any capitalised reserve or fund, the Board may subject to the Statutes and, in the case of shares held in
uncertificated form, the system’s rules, settle it as the Board considers expedient and in particular may issue fractional certificates, authorise any person to sell and transfer any fractions or resolve that the distribution should
be made as nearly as practicable in the correct proportion or may ignore fractions altogether, and may determine that cash payments shall be made to any members in order to adjust the rights of all parties as the Board considers
expedient.
|
131.5 |
Where, pursuant to an employees’ share scheme, the Company has granted options to subscribe for shares on terms which provide (
inter alia
) for adjustments to the subscription price payable on the exercise of such options or to the number of shares to be allotted upon such exercise in the event of any increase
or reduction in, or other reorganisation of, the Company’s issued share capital and an otherwise appropriate adjustment would result in the subscription price for any share being less than its nominal value, then, subject to and in
accordance with the provisions of the Statutes, the Board may, on the exercise of any of the options concerned and payment of the subscription which would have applied had such adjustment been made, capitalise any such profits or
other sum as is mentioned in Article 131.1 to the extent necessary to pay up the unpaid balance of the nominal value of the shares which fall to be allotted on the exercise of such options and apply such amount in paying up such
balance and allot shares fully paid accordingly. The other provisions of this Article 131 shall apply
mutatis mutandis
to any such
capitalisation except that the authority of an ordinary resolution of the Company shall not be required.
|
132. |
CAPITALISATION OF RESERVES – RIGHTS PLAN
|
132.1 |
This Article (which is without prejudice to the generality of the provisions of Article 131) applies where:
|
|
132.1.1 |
the Board has established a Rights Plan and has granted Rights in accordance therewith as provided in Articles 8.1 and 8.2; and
|
|
132.1.2 |
the Board has exercised any discretion which may be conferred upon it by any Rights Plan so established to exchange or cause to be exchanged all or part of the Rights
(other than Rights held by or on behalf of an Acquiring Person, which would have become void) for ordinary shares and/or shares of another class.
|
132.2 |
For the purpose of giving effect to any such exchange as is referred to in Article 132.1.2, the Board may:
|
|
132.2.1 |
resolve to capitalise an amount standing to the credit of reserves (including a share premium account, capital redemption reserve or profit and loss account), whether or
not available for distribution, being an amount equal to the nominal amount of the new ordinary shares and/or the other shares which are to be exchanged for the Rights (other than Rights held by or on behalf of an Acquiring Person);
and
|
|
132.2.2 |
apply that sum in paying up in full new ordinary shares and/or shares of another class and allot such ordinary shares and/or such other shares, credited as fully paid, to
the holders of Rights (other than an Acquiring Person) in exchange for the Rights (other than Rights held by or on behalf of an Acquiring Person).
|
132.3 |
The provisions of Articles 131.3 and 131.4 shall apply (mutatis mutandis) to any resolution of the Board pursuant to Article 132.2 as they apply to any resolution of the
Board pursuant to Article 131.
|
133. |
AUTHENTICATION OF DOCUMENTS
|
134. |
POWER TO CHOOSE RECORD DATE
|
135. |
INSPECTION OF RECORDS
|
136. |
DESTRUCTION OF DOCUMENTS
|
136.1 |
Subject to compliance with the system’s rules, the Company may destroy:
|
|
136.1.1 |
any instrument of transfer of shares and any other document on the basis of which an entry is made in the Register, at any time after the expiration of six years from the
date of registration;
|
|
136.1.2 |
any instruction concerning the payment of dividends or other monies in respect of any share or any notification of change of name or address, at any time after the
expiration of two years from the date the instruction or notification was recorded; and
|
|
136.1.3 |
any share certificate which has been cancelled, at any time after the expiration of one year from the date of cancellation,
|
136.2 |
It shall conclusively be presumed in favour of the Company that every instrument of transfer so destroyed was a valid and effective instrument duly and properly
registered and that every share certificate so destroyed was a valid and effective document duly and properly cancelled and that every other document so destroyed was a valid and effective document in accordance with its particulars
recorded in the books or records of the Company provided that:
|
|
136.2.1 |
this Article shall apply only to the destruction of a document in good faith and without express notice that its retention was relevant to any claim (regardless of the
parties to the claim);
|
|
136.2.2 |
nothing contained in this Article shall be construed as imposing upon the Company any liability in respect of the destruction of any such document earlier than the times
referred to in this Article or in any case where the conditions of this Article are not fulfilled; and
|
|
136.2.3 |
references in this Article to the destruction of any document or thing include references to its disposal in any manner.
|
137. |
FORM OF COMMUNICATIONS
|
137.1 |
Except to the extent that these Articles provide otherwise, and subject to compliance with the Statutes, anything sent or supplied by or to any person, including the
Company, under these Articles may be sent or supplied, whether or not because the Statutes require it to be sent or supplied, in any way (including, except in the case of anything supplied to the Company, by making it available on a
website) in which documents or information required to be sent or supplied may be sent or supplied by or to that person in accordance with the Companies Act 2006.
|
137.2 |
Except insofar as the Statutes require otherwise, the Company shall not be obliged to accept any notice, document or other information sent or supplied to the Company in
electronic form unless it satisfies such stipulations, conditions or restrictions (including for the purpose of authentication) as the Board thinks fit, and the Company shall be entitled to require any such notice, document or
information to be sent or supplied in hard copy form instead.
|
137.3 |
Any notice, document or other communication (including copies of accounts or summary financial statements) to be given to or by any person pursuant to these Articles
(other than a notice calling a meeting of Directors) shall be in writing except that, if it is in electronic form, it need not be in writing unless these Articles specifically require it to be.
|
137.4 |
Subject to the Statutes, the Board may from time to time issue, endorse or adopt terms and conditions relating to the use of electronic means under these Articles.
|
137.5 |
Nothing in these Articles shall prevent the Company from sending or supplying any notice, document or information in hard copy form instead of in electronic form on any
occasion.
|
138. |
COMMUNICATION WITH JOINT HOLDERS
|
139. |
COMMUNICATION WITH OVERSEAS MEMBERS
|
140. |
COMMUNICATIONS AFTER TRANSMISSION
|
140.1 |
Any notice, document or other information sent or supplied to any member pursuant to these Articles shall, notwithstanding that the member is then dead or bankrupt or
that any other event giving rise to the transmission of the share by operation of law has occurred and whether or not the Company has notice of the death, bankruptcy or other event, be deemed to have been properly sent or supplied in
respect of any share registered in the name of that member as sole or joint holder.
|
140.2 |
Unless agreed otherwise with the relevant transmittee, the Company may send or supply any notice, document or other information to a transmittee in any manner in which it
might have been sent or supplied to the member from whom the transmittee derives title to the relevant share, and as if the transmittee’s address were the same as the member’s address in the Register or the electronic address (if any)
specified by the member; but the Company shall not be entitled to assume that the address or electronic address is correct if sending notice to the transmittee under Section 793 of the Companies Act 2006.
|
141. |
WHEN NOTICE DEEMED SERVED
|
141.1 |
Any notice, document or other information:
|
|
141.1.1 |
if sent by the Company by post or other delivery service shall be deemed to have been received on the day (whether or not it is a working day) following the day (whether
or not it was a working day) on which it was put in the post or given to the delivery agent and, in proving that it was duly sent, it shall be sufficient to prove that the notice, document or information was properly addressed,
prepaid and put in the post or duly given to the delivery agent;
|
|
141.1.2 |
if sent by the Company by electronic means in accordance with the Statutes shall be deemed to have been received on the same day that it was sent, and proof that it was
sent in accordance with guidance issued by the Institute of Chartered Secretaries and Administrators shall be conclusive evidence that it was sent;
|
|
141.1.3 |
if made available on a website in accordance with the Statutes shall be deemed to have been received when notification of its availability on the website is deemed to
have been received or, if later, when it is first made available on the website;
|
|
141.1.4 |
not sent by post or other delivery service but delivered personally or left by the Company at the address for that member on the Register shall be deemed to have been
received on the day (whether or not it was a working day) and at the time it was so left;
|
|
141.1.5 |
sent or delivered by a relevant system shall be deemed to have been received when the Company (or a sponsoring system-participant acting on its behalf) sends the issuer
instructions relating to the notice, document or information;
|
|
141.1.6 |
sent or supplied by the Company by any other means agreed by the member concerned shall be deemed to have been received when the Company has duly performed the action it
has agreed to take for that purpose; and
|
|
141.1.7 |
to be given by the Company by advertisement shall be deemed to have been received on the day on which the advertisement appears.
|
142. |
RECORD DATE FOR COMMUNICATIONS
|
143. |
LOSS OF ENTITLEMENT TO RECEIVE COMMUNICATIONS
|
143.1 |
If on two consecutive occasions notices, documents or information have been sent to any member at the registered address or the member’s address (including an electronic
address) for the service of notices but, through no fault of the Company, have been undelivered, such member shall not from then on be entitled to receive notices, documents or other information from the Company until the member has
notified to the Company in writing a new address within the United Kingdom or the United States to be either the member’s registered address or the member’s address (including an electronic address) for the service of notices.
|
144. |
NOTICE WHEN POST NOT AVAILABLE
|
144.1 |
If at any time postal services within the United Kingdom or the United States are suspended or curtailed so that the Company is unable effectively to convene a general
meeting or a meeting of the holders of any class of shares in its capital by notice sent through the post, the Board may decide that the only members to whom notice of the meeting must be sent are those to whom notice to convene the
meeting can validly be sent by electronic means and those to whom notification as to the availability of the notice of meeting on a website can validly be sent by electronic means. In any such case the Company shall also Publicly
Disclose the meeting (and in the United Kingdom advertise the meeting in at least one newspaper with a national circulation). If at least six clear days prior to the meeting the giving of notices by post to addresses throughout the
United Kingdom or the United States has, in the Board’s opinion, become practicable, the Company shall send confirmatory copies of the notice by post or such other manner as is permitted under these Articles to the persons entitled to
receive them when postal services are running normally.
|
144.2 |
At any time that postal services within the United Kingdom or the United States are suspended or curtailed, any other notice or information considered by the Board to be
capable of being supplied by advertisement shall be Publicly Disclosed (and in the United Kingdom advertised in at least one newspaper with a national circulation), be deemed to have been notified to all members and transmittees to
whom it would otherwise have been supplied in hard copy form.
|
145. |
DISTRIBUTION IN SPECIE ON WINDING UP
|
146. |
DISPUTE RESOLUTION
|
146.1 |
The courts of England and Wales shall have exclusive jurisdiction to determine any dispute brought by a member in that member’s capacity as such, or related to or
connected with any derivative claim in respect of a cause of action vested in the Company or seeking relief on behalf of the Company, against the Company, the Board or any of the Directors, officers, employees or members individually
(or any combination of the foregoing persons), arising out of or in connection with these Articles or (to the maximum extent permitted by applicable law) otherwise.
|
146.2 |
Damages alone may not be an adequate remedy for any breach of this Article 146, so that, in the event of a breach or anticipated breach, the remedies of injunction and an
order for specific performance would in appropriate circumstances be available.
|
146.3 |
The governing law of these Articles is the substantive law of England and Wales and these Articles shall be interpreted and construed in accordance with such law.
|
146.4 |
For the purposes of this Article 146:
|
|
146.4.1 |
a “
dispute
” shall mean any dispute, controversy or claim; and
|
|
146.4.2 |
“
Director
” and “
officer
” shall be read so as to include each and any Director and officer of the Company from time to time in his or her capacity as such or as an employee of the Company and shall include any former
Director or officer of the Company.
|
147. |
INDEMNITY AND PROVISION OF FUNDS
|
147.1 |
Subject to, and to the extent not avoided by, the Statutes but without prejudice to any indemnity to which the person may otherwise be entitled:
|
|
147.1.1 |
any person who is or was at any time a director, secretary or other officer (unless the office is or was as auditor) of the Company or of any of its present or former
subsidiary undertakings may be indemnified out of the assets of the Company to whatever extent the Board may determine against any costs, charges, expenses, losses and liabilities sustained or incurred by him or her in the actual or
purported execution of his or her duties or in the exercise or purported exercise of his or her powers or otherwise in connection with his or her office, whether or not sustained or incurred in connection with any negligence, default,
breach of duty or breach of trust by him or her in relation to the Company or the relevant undertaking; and
|
|
147.1.2 |
the Board shall have power to provide funds to meet any expenditure incurred or to be incurred by any such person in defending himself or herself in any criminal or civil
proceeding in connection with any alleged negligence, default, breach of duty or breach of trust by him or her in relation to the Company or any such undertaking, or any investigation, or action proposed to be taken, by a regulatory
authority in that connection, or for the purposes of any application under the Companies Act 2006, or in order to enable him or her to avoid incurring any such expenditure.
|
148. |
POWER TO INSURE
|
149. |
NOMINATION NOTICES
|
149.1 |
A member may from time to time send the Company notice in writing that another person is entitled to enjoy or exercise all or any specified rights of that member in
relation to the Company (a “
nomination notice
”). For the purposes of these Articles, but subject to the provisions of the Statutes, references to
any matter to be done by, or in relation to, a person who is a member shall be deemed to include reference to any person for the time being nominated in accordance with this Article (and such references shall, until such nomination
ceases to have effect in accordance with this Article, exclude the member who made the nomination).
|
149.2 |
The Company may prescribe the form and content of nomination notices. Unless the Company prescribes otherwise, a nomination notice must:
|
|
149.2.1 |
identify the shares held by the member to which the nomination notice relates;
|
|
149.2.2 |
state the name and address of the person nominated;
|
|
149.2.3 |
specify how the Company is to communicate with the person nominated and include any further information which the Company will need in order to use the means of
communication specified;
|
|
149.2.4 |
specify the rights the person nominated is to be entitled to enjoy or exercise in relation to the shares to which it relates and state whether the member giving the
notice may also continue to exercise or enjoy them;
|
|
149.2.5 |
specify the date from which it is to take effect, if later than the date on which the Company is deemed to receive it in accordance with these Articles; and
|
|
149.2.6 |
be executed by or on behalf of the member and the person nominated.
|
150. |
EFFECT OF NOMINATION NOTICES
|
150.1 |
Subject to these Articles, if the Company receives a nomination notice, the Company must give effect to that notice in accordance with its terms.
|
150.2 |
Unless a nomination notice specifies when it is to cease to have effect, it will have effect until further notice or until the member concerned ceases to hold the shares
to which it relates, and in any event it will cease to have effect when the Company is notified or otherwise becomes aware that the member concerned, or the person nominated, has died or ceased to exist. The fact that a nomination
notice has ceased to have effect shall not invalidate anything done (or omitted to be done) by the person nominated at any time prior to the date the nomination notice ceases to have effect in accordance with this Article.
|
150.3 |
If the Company receives a document which purports to be a nomination notice but which does not contain the required information or which is not given in the form
prescribed by the Company, the Company:
|
|
150.3.1 |
must not give effect to it; and
|
|
150.3.2 |
must notify the person that it is defective (and in what respect it is defective), and that the Company cannot give effect to it in its present form.
|
150.4 |
If more than one person has been nominated pursuant to Article 148 to exercise or enjoy a right in relation to the same shares, the Company shall, in the absence of any
relevant limitation in the nomination notice on the rights of the person nominated, accept the instruction or exercise of the relevant right that is first received, to the exclusion of any later instruction or purported exercise by
another nominated person in respect of the same right and the same shares.
|
150.5 |
For the purposes of Article 97, a person nominated in respect of any shares who duly exercises any right of a member under Article 97.2 or Article 97.3 shall be required
to provide not only the information stipulated in such Articles as it relates to the member in respect of the shares but also such further information in respect of the shares as such Articles would have required if they had referred
to the person nominated instead of to the member.
|
151. |
COMPANY TO KEEP RECORDS OF NOMINATIONS
|
151.1 |
The Company must keep a record of all nomination notices that are in force or have been in force within the preceding 12 months.
|
151.2 |
The Company must provide any member, on request, with a copy of its records of nomination notices given in relation to that member.
|
151.3 |
The Company must provide any person nominated in a nomination notice with a copy of its records of nomination notices in which that person is nominated.
|
152. |
MANDATORY OFFER PROVISIONS
|
152.1 |
Save as otherwise permitted in compliance with any agreement to which the Company and any shareholder is a party, a person (other than a Depositary) must not:
|
|
152.1.1 |
effect or purport to effect a Prohibited Acquisition (as defined in Article 152.10); or
|
|
152.1.2 |
except as a result of a Permitted Acquisition (as defined in Article 152.8):
|
|
(a) |
whether by a series of transactions over a period of time or not, acquire an interest in shares which (on their own or taken together with shares in which persons
determined by the Board to be acting in concert with the relevant person are interested) carry 30% or more of the voting rights of the Company; or
|
|
(b) |
whilst the person (alone or together with persons determined by the Board to be acting in concert with the relevant person) is interested in shares that in aggregate
carry not less than 30% but not more than 50% of the voting rights of the Company, acquire, whether singly or with persons determined by the Board to be acting in concert with the person, an interest in any other shares that (on their
own taken or together with any interests in shares held by persons determined by the Board to be acting in concert with the person) increases the percentage of shares carrying voting rights in which the person is interested;
|
152.2 |
Where any person (other than a Depositary) breaches any Limit, except as a result of a Permitted Acquisition, or becomes interested in any shares as a result of a
Prohibited Acquisition, that person is in breach of these Articles.
|
152.3 |
Where the Board has reason to believe that any Limit is or may be breached or any Prohibited Acquisition has been or may be effected it may require any shareholder or any
other person (other than, in each case, a Depositary in its capacity as Depositary) to provide details of: (i) any persons acting in concert with such shareholder or other person; (ii) any interests in shares of such shareholder or
other person (or any persons acting in concert with them); and (iii) any other information, as in each case the Board considers appropriate to determine any of the matters under this Article 152.
|
152.4 |
Where the Board determines (at any time and without any requirement to have first exercised any of its rights under Article 152.3) that any Limit is breached (and, in the
case of a breach of a Limit that is capable of becoming a Permitted Acquisition in accordance with the provisions of Article 152.8.3, at any time that such acquisition has not become a Permitted Acquisition) or any Prohibited
Acquisition has been effected (or is purported) by any person (such person, together with any persons determined by the Board to be acting in concert with the person, being “
Breaching Persons
”), the Board may do all or any of the following:
|
|
152.4.1 |
require any member or person appearing or purporting to be interested in any shares of the Company or any other person (other than, in each case, a Depositary in its
capacity as Depositary) to provide such information as the Board considers appropriate to determine any of the matters under this Article 152 (including, without limitation, information regarding (i) any persons acting in concert with
such member or other person, and (ii) any interests in shares of such member (or other person or any persons acting in concert with any of them);
|
|
152.4.2 |
have regard to such public filings as it considers appropriate to determine any of the matters under this Article 152;
|
|
152.4.3 |
make such determinations under this Article 152 as it thinks fit, either after calling for submissions from affected members or other persons or without calling for such
submissions;
|
|
152.4.4 |
determine that shareholders shall not be entitled in respect of any shares held by or on behalf of the Breaching Persons, or which the Breaching Persons are interested,
in breach of this Article 152 (together, “
Relevant Shares
”) to be present or to vote or procure or instruct another person to vote (in each case
either in person or by proxy) at a general meeting or at a separate meeting of the holders of a class of shares or on a poll and, without prejudice to the foregoing, determine that any votes purported to be cast in respect of Relevant
Shares at a general meeting or at a separate meeting of the holders of a class of shares shall be disregarded;
|
|
152.4.5 |
determine that any dividend or other distribution (or any part of a dividend or other distribution) or other amount payable in respect of the Relevant Shares shall be
withheld by the Company, which shall have no obligation to pay interest on it, and that the relevant shareholder shall not be entitled to elect, pursuant to Articles 123 or 124, to receive shares instead of a dividend;
|
|
152.4.6 |
determine that no transfer of any certificated Relevant Shares (other than any Relevant Shares held by a Depositary in its capacity as Depositary) to or from a Breaching
Person shall be registered; and
|
|
152.4.7 |
take such other action as it thinks fit for the purposes of this Article 152, including:
|
|
(a) |
prescribing rules (not inconsistent with this Article 152);
|
|
(b) |
setting deadlines for the provision of information;
|
|
(c) |
drawing adverse inferences where information requested is not provided;
|
|
(d) |
making determinations or interim determinations;
|
|
(e) |
appointing an expert to advise the Board on any issues arising from this Article 152, including any questions of interpretation;
|
|
(f) |
executing documents on behalf of a member;
|
|
(g) |
converting any Relevant Shares held in uncertificated form into certificated form, or vice versa;
|
|
(h) |
paying costs and expenses out of proceeds of sale; and
|
|
(i) |
changing any decision or determination or rule previously made.
|
152.5 |
For the purpose of enforcing the sanction in Article 152.4.6, the Board may give notice to the relevant shareholder and/or Breaching Person requiring the shareholder
and/or Breaching Person to change the Relevant Shares held in uncertificated form into certificated form by the time stated in the notice. The notice may also state that the shareholder and/or Breaching Person may not change any
Relevant Shares held in certificated form to uncertificated form. If the shareholder and/or Breaching Person does not comply with the notice, the Board may require the Operator to convert Relevant Shares held in uncertificated form
into certificated form in the name and on behalf of the relevant shareholder and/or Breaching Person in accordance with the Regulations or a Depositary to convert such number of Relevant Shares into certificated form in the name and
on behalf of the shareholder and/or Breaching Person in question.
|
152.6 |
Where any Relevant Shares are held by a Depositary (in its capacity as Depositary), the provisions of this Article 152 shall be treated as applying only to such Relevant
Shares held by a Depositary on behalf of Breaching Persons and not to any other shares held by the relevant Depositary.
|
152.7 |
No Depositary shall be in breach of Article 152.1 or Article 152.2 or be a Breaching Person solely as a result of holding any shares (or interests in shares) in its
capacity as Depositary provided that any shares held by any such Depositary (or in which such Depositary is interested) may still be Relevant Shares. Notwithstanding the preceding sentences, all interests in shares held by or on
behalf of persons other than a Depositary with respect to shares (or interests in shares) held by such Depositary shall be taken into account for all purposes of this Article.
|
152.8 |
For the purposes of this Article, an acquisition is a “
Permitted Acquisition
” or,
in the case of Article 152.8.3, an acquisition will become a Permitted Acquisition upon completion of the making and implementation of a Mandatory Offer in accordance with, and compliance with the other provisions of, Article 152.8.3
if:
|
|
152.8.1 |
the Board consents in advance to the acquisition or the acquisition is pursuant to an offer made by or on behalf of the acquirer that is recommended by the Board; or
|
|
152.8.2 |
the acquisition is made as a result of a voluntary offer made and implemented (save to the extent that the Board determines otherwise):
|
|
(a) |
for all of the issued shares (except not necessarily for those already held by the acquirer);
|
|
(b) |
in cash (or accompanied by a full cash alternative); and
|
|
(c) |
otherwise in accordance with the provisions of the Takeover Code (as if the Takeover Code applied to the Company); or
|
|
152.8.3 |
the acquisition is made pursuant to a single transaction which causes a breach of a Limit (otherwise than as a result of an offer) and provided that:
|
|
(a) |
no further acquisitions are made by the acquirer (or any persons determined by the Board to be acting in concert with the acquirer) other than (i) pursuant to a Mandatory
Offer made in accordance with Article 152.8.3(b) or (ii) Permitted Acquisitions under Article 152.8.1, 152.8.4 or 152.8.5, provided that no such further acquisition (other than pursuant to a Mandatory Offer made in accordance with
Article 152.8.3(b)) shall be or become, in any event, a Permitted Acquisition under this Article 152.8.3; and
|
|
(b) |
the acquirer makes, within seven days of such breach, and does not subsequently withdraw, an offer which, except to the extent the Board determines otherwise, is made and
implemented in accordance with Rule 9 and the other relevant provisions of the Takeover Code (as if it so applied to the Company) (a “
Mandatory Offer
”),
and (for the avoidance of doubt) acquisitions pursuant to a Mandatory Offer shall (subject to compliance with the other provisions of this Article 152.8.3) also be Permitted Acquisitions; or
|
|
152.8.4 |
the acquisition was approved previously by an ordinary resolution passed by a general meeting if no votes are cast in favour of the resolution by or, in the case of
shares held by a Depositary for the person in question, at the direction of:
|
|
(a) |
the person proposing to make the acquisition and any persons determined by the Board to be acting in concert with the person; or
|
|
(b) |
the persons (if any) from whom the acquirer (together with persons determined by the Board to be acting in concert with the acquirer) has agreed to acquire shares or
interests in shares or has otherwise obtained an irrevocable commitment in relation to the acquisition of shares or interests in shares by the acquirer or any persons determined by the Board to be acting in concert with acquirer; or
|
|
152.8.5 |
there is an increase in the percentage of the voting rights attributable to an interest in shares held by a person determined by the Board to be acting in concert with
the acquirer and such an increase would constitute a breach of any Limit where such increase results from the Company redeeming or purchasing its own shares or interests in shares.
|
152.9 |
Unless the Board determines otherwise, in the case of a Permitted Acquisition pursuant to Article 152.8.1, 152.8.2 or 152.8.3 above, an offer must also be made in
accordance with Rule 14, if applicable, and Rule 15 of the Takeover Code (as if Rules 14 and 15 applied to the Company).
|
152.10 |
Unless: (a) the acquisition is a Permitted Acquisition; or (b) the Board determines otherwise, an acquisition of an interest in shares is a “
Prohibited Acquisition
” if Rules 4 (Restrictions on dealings), 5 (Timing restrictions on acquisitions), 6 (Acquisitions resulting in an obligation to offer a minimum level
of consideration), 8.1 (Disclosure by an Offeror), 8.4 (Disclosure by Concert Parties) or 11 (Nature of consideration to be offered) of the Takeover Code would in whole or part apply if the Company were subject to the Takeover Code
and the acquisition of such interest in shares were made (or, if not yet made, would, if and when made, be) in circumstances involving a breach of, or a failure to comply with, Rules 4, 5, 6, 8.1, 8.4 or 11 of the Takeover Code.
|
152.11 |
The Board has full authority to determine the application of this Article 152 including as to the deemed application of relevant parts of the Takeover Code (as if it
applied to the Company). Such authority shall include all discretion vested in the Takeover Panel (as if the Takeover Code applied to the Company). Any resolution or determination of, or decision or exercise of any discretion or power
by, the Board acting in good faith and on such grounds as the Board shall consider reasonable shall be conclusive and binding on all persons concerned and shall not be open to challenge, whether as to its validity or otherwise on any
ground whatsoever and, in the absence of fraud, the Board shall not owe any duty of care to or have any liability to any person in respect of any cost, loss or expense as a result of any such resolution, determination, decision or
exercise of any discretion or power. The Board shall not be required to provide any reasons for any decision, determination, resolution or declaration taken or made in accordance with this Article 152.
|
152.12 |
At all times when the Company is in an offer period pursuant to Article 152.8.3, each member (other than a Depositary) shall comply with the disclosure obligations set
out in Rule 8 of the Takeover Code as if Rule 8 applied to the Company, provided that members shall make any required disclosures to the Board on a private basis.
|
152.13 |
Any one or more of the Directors may act as agent of any shareholder and/or Breaching Person in relation to the execution of documents and other actions to be taken in
respect of Relevant Shares as determined by the Board under this Article 152 (including to enforce the sanctions referred to in Article 152.4).
|
152.14 |
Where used in this Article, the phrases “
offer
” and “
voting rights
” shall have the meanings ascribed to them in the Takeover Code. This Article 152 only applies while the Takeover Code does not apply to the Company.
|
152.15 |
This Article 152 only applies whilst the Takeover Code does not apply to the Company.
|
EXECUTED
as a
DEED
by
|
)
|
||
EXARRO RESOURCES LIMITED
|
)
|
||
on being signed by:
|
)
|
/s/ P. A. Koppeschaar
|
|
P. A. Koppeschaar
|
)
|
||
in the presence of:
|
)
|
Signature of witness:
|
/s/ S. S. Kotzé
|
Name of witness:
|
S. S. Kotzé
|
EXECUTED
as a
DEED
by
TRONOX HOLDINGS PLC
:
|
||
/s/ Timothy C. Carlson
|
/s/ Steven Kaye
|
|
Signature of director
|
Signature of director
|
|
Timothy C. Carlson
|
Steven Kaye
|
|
Name
|
Name
|
(a)
|
the Company issues the Share to the person (or a nominee of the person); or
|
(b)
|
the Company causes the Share to be transferred to the person (or a nominee of the person).
|
|
• |
earnings per share;
|
|
• |
operating income;
|
|
• |
gross income;
|
|
• |
net income (before or after taxes);
|
|
• |
cash flow;
|
|
• |
gross profit;
|
|
• |
gross profit return on investment;
|
|
• |
gross margin return on investment;
|
|
• |
gross margin;
|
|
• |
operating margin;
|
|
• |
working capital;
|
|
• |
earnings before interest and taxes;
|
|
• |
earnings before interest, tax, depreciation, and amortization;
|
|
• |
return on equity;
|
|
• |
return on assets;
|
|
• |
return on capital;
|
|
• |
return on invested capital;
|
|
• |
return on capital employed;
|
|
• |
net revenues;
|
|
• |
gross revenues;
|
|
• |
revenue growth;
|
|
• |
annual recurring revenues;
|
|
• |
recurring revenues;
|
|
• |
service revenues;
|
|
• |
license revenues;
|
|
• |
sales or market share;
|
|
• |
total shareholder return;
|
|
• |
economic value added;
|
|
• |
specified objectives with regard to limiting the level of increase in all or a portion of the Company’s
bank debt or other long-term or short-term public or private debt or other similar financial obligations of the Company, which may be calculated net of cash balances and/or other offsets and adjustments as may be established by the
Committee in its sole discretion;
|
|
• |
the fair market value of the a share of Common Stock;
|
|
• |
the growth in the value of an investment in the Common Stock assuming the reinvestment of dividends; or,
|
|
• |
reduction in operating expenses.
|
|
(a) |
restructurings, discontinued operations, extraordinary items or events, and other unusual or non-recurring
charges as described in Accounting Principles Board Opinion No. 30 and/or management’s discussion and analysis of financial condition and results of operations appearing or incorporated by reference in the Company’s Form 10-K for the
applicable year;
|
|
(b) |
an event either not directly related to the operations of the Company or not within reasonable control of the
Company’s management; or,
|
|
(c) |
a change in tax law or accounting standards required by generally accepted accounting principles.
|
|
(a) |
designate additional business criteria on which the performance goals may be based; or,
|
|
(b) |
adjust, modify or amend the aforementioned business criteria.
|
DATED |
|
MARCH 2019 |
1.
|
Interpretation
|
1
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2.
|
Indemnity
|
2
|
3.
|
Conduct of claims
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4
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4.
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Company’s liability and Director’s remedies
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5
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5.
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Confidentiality
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5
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6.
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Notices
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5
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7.
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General
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6
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(1) |
TRONOX HOLDINGS PLC
, registered in England and Wales (registered number
11653089), whose registered office is at 3
rd
Floor, 25 Bury Street, London SW1Y 2AL (the “
Company
”); and
|
(2) |
DIRECTOR
of [RESIDENTIAL ADDRESS] (the “
Director
”).
|
(A) |
The Director is a director of the Company at the date of this Deed.
|
(B) |
Pursuant to article 147 of the Company’s articles of association, and subject to the Companies Act 2006, the Company is permitted to indemnify any of its directors
against certain liabilities.
|
(C) |
The Company has agreed to provide an indemnity to the Director on the terms and subject to the conditions of this Deed.
|
1. |
INTERPRETATION
|
1.1 |
In this Deed the expressions below have the meanings shown next to them:
|
1.2 |
In this Deed:
|
|
1.2.1 |
the headings and sub-headings are for convenience only and shall not affect the construction of this Deed;
|
|
1.2.2 |
unless the context otherwise requires, words denoting the singular shall include the plural and vice versa and references to any gender shall include all other genders.
References to any person (which for the purposes of this Deed shall include natural persons and bodies corporate) shall include the person’s successors including, in the case of the Director, his executors or administrators;
|
|
1.2.3 |
“
other
”,
“
include
” and “
including
”
do not connote limitation in any way;
|
|
1.2.4 |
references to clauses are to the clauses of this Deed (unless otherwise specified);
|
|
1.2.5 |
references to any statute, statutory provision or other legislation include a reference to that statute, statutory provision or legislation as amended, extended,
re-enacted, consolidated or replaced from time to time (whether before or after the date of this Deed) and include any order, regulation, instrument or other subordinate legislation made under the relevant statute, statutory provision
or legislation; and
|
|
1.2.6 |
any reference to “
writing
” or “
written
” includes faxes and any legible reproduction of words delivered in permanent and tangible form (but, subject to clause 6.1, does not include e-mail).
|
2. |
INDEMNITY
|
2.1 |
Subject to the provisions of the Companies Act 2006 and this Deed, the Company shall indemnify the Director to the fullest extent permissible by law against all
Liabilities which the Director may incur arising out of or in connection with any Third Party Claim
for any actual or alleged negligence,
default, breach of duty or breach of trust, in relation to the Company or any Associated Company.
|
2.2 |
The indemnity contained in clause 2.1 shall not apply to any liability incurred by the Director:
|
|
2.2.1 |
to pay a fine imposed in criminal proceedings or a sum payable to a regulatory authority by way of a penalty in respect of non-compliance with any requirement of a
regulatory nature (however arising);
|
|
2.2.2 |
in defending any criminal proceedings in which he is convicted of a criminal offence; or
|
|
2.2.3 |
in relation to a body corporate that is or was an Associated Company to the extent that the act or omission giving rise to the liability was carried out at a time when
that body corporate was not yet or had ceased to be an Associated Company.
|
2.3 |
The indemnity contained in clause 2.1 shall not apply to any liability incurred by the Director:
|
|
2.3.1 |
to the Company or to any Associated Company;
|
|
2.3.2 |
in defending any civil proceedings brought by or on behalf of the Company or an Associated Company in which judgment is given against him;
|
|
2.3.3 |
in connection with any Application in which the court refuses to grant him relief; or
|
|
2.3.4 |
in connection with any proceedings for disqualification of the Director in which the Director is disqualified or in relation to which the Director gives a
disqualification undertaking,
|
2.4 |
References in clauses 2.2 and 2.3 to a conviction, judgment or refusal of relief are to the final decision in the proceedings, as defined in section 234 or (where
relevant) section 235 of the Companies Act 2006.
|
2.5 |
Furthermore, the indemnity in clause 2.1 shall not apply:
|
|
2.5.1 |
to the extent that it is not permitted by, or consistent with, law or statute from time to time in force, or the rules and regulations of any regulatory body;
|
|
2.5.2 |
where there has been fraud or wilful default by the Director; nor
|
|
2.5.3 |
where the Director or a person connected with the Director has improperly derived a personal benefit or profit, whether directly or indirectly, from the matter in respect
of which a liability arises.
|
2.6 |
The Company shall not be liable for any Claim to the extent that the Director has already recovered any amount in respect of the Liabilities concerned from a third party,
whether by payment, credit, discount, relief, pursuant to a claim under insurance (including such D&O Insurance as may be in force from time to time in relation to the Company and/or any Associated Company), under any other
indemnity or otherwise, and where the Director makes any such recovery after the Company has made any payment to him in respect of the Claim he shall promptly pay the Company an amount equal to so much of the amount recovered as does
not exceed the total amount paid by the Company in respect of the Claim (as reduced by the total amount, if any, previously paid to the Company pursuant to this clause in respect of the Claim).
|
2.7 |
The Company and the Director acknowledge and agree that the Director may have already suffered or incurred Liabilities arising out of or in connection with any
negligence, default, breach of duty or breach of trust by the Director in relation to the Company or any Associated Company. The Director warrants that he is not aware of any existing Liabilities and that he is not aware of any
circumstances that may give rise to any Liabilities.
|
2.8 |
The Company undertakes and agrees to provide and maintain in force D&O Insurance for the benefit of the Director providing a level of cover in respect of its scope
and amount that its insurance broker advises is reasonable. The Director agrees to comply at all times with his obligations under and in respect of the D&O Insurance, including obligations of disclosure and in respect of
statements made in connection with the obtaining of D&O Insurance, and with the terms and conditions of such D&O Insurance as may be in force from time to time, including compliance with conditions relating to the notification
and conduct of claims and incurring of legal costs. The Company shall not be liable for any Claim to the extent that the Director’s failure so to comply directly or indirectly results, or may result, in indemnity for that Director
being declined under such D&O Insurance.
|
2.9 |
Except as otherwise expressly provided in this Deed, all payments to be made under this Deed shall be made in full without any set-off or counterclaim and free from any
deduction or withholding except as may be required by law (in which event such deduction or withholding shall not exceed the minimum amount required by law and the Company will simultaneously pay to the Director whatever additional
amount is required for the net amount received to equal what would have been received if no such deduction or withholding had been required).
|
2.10 |
If the Company makes any payment under this Deed, subject to the terms of any D&O Insurance in force at the relevant time, it shall be subrogated to the extent of
such payment to any right the Director may have for recovery of the amounts so paid from any third party. The Director agrees to execute all documents required and do all other acts necessary to effect the foregoing provisions and
permit the Company to enforce the rights so subrogated.
|
2.11 |
The indemnity contained in clause 2.1 is without prejudice to any other indemnity or compensation to which the Director may otherwise be entitled from the Company or any
Associated Company.
|
2.12 |
Except in the case of the Director’s disqualification, or dismissal for gross misconduct,
the
Director’s rights and obligations under this Deed shall remain in full force and effect notwithstanding his ceasing, for any reason, to be a director of the Company for a period of six years from the date on which he ceased to be a
Director.
|
3. |
CONDUCT OF CLAIMS
|
3.1 |
The Company shall advance costs and expenses to the Director on an as incurred basis prior to the adjudication of any Third Party Claim that is the subject of a Claim
under this Deed.
|
3.2 |
Except to the extent that it would be inconsistent with the Director’s due compliance with clause 2.8, the Director shall be obliged to take reasonable action to mitigate
any Liabilities which he may suffer or incur in consequence of any matter giving rise to a Claim, including taking all reasonable steps to make recovery (including by payment, credit, discount, relief or otherwise) from any third
party (including any in respect of whom there may be a right of recovery which is referable to the matter giving rise to the Claim).
|
3.3 |
Except to the extent that it would be inconsistent with the Director’s due compliance with clause 2.8, the Company shall (if it so requires) be allowed to have the
conduct of any negotiations, proceedings or appeals incidental to any matter which may give rise to a Claim provided that the Company shall not admit liability in respect of or compromise or settle any such matter without first
obtaining the prior written consent of the Director making the Claim.
.
Accordingly the Director shall:
|
|
3.3.1 |
give to the Company by written notice details immediately on becoming aware of them of any circumstances which will or may give rise to a Claim, and consult with the
Company in respect of, and keep the Company fully and promptly informed of all material developments relating to, such circumstances and the Claim;
|
|
3.3.2 |
at all reasonable times allow the Company and its agents to inspect and take copies of all necessary books, correspondence and records of the Director (subject always to
keeping them confidential except to the extent that their disclosure is necessary in connection with the proper exercise of the Company’s rights under this clause); and
|
|
3.3.3 |
use professional advisers nominated by the Company and, if so requested by the Company, take all reasonable steps or proceedings as the Company may consider necessary in
order to mitigate, avoid, resist, appeal, dispute, contest, remedy, compromise or defend any of the relevant Liabilities, but not without the Company’s prior written consent admit liability in respect of, compromise or settle any such
Liabilities.
|
3.4 |
The provisions of clause 3.3 shall:
|
|
3.4.1 |
not apply to any matter arising out of or in connection with any dispute between the Director and the Company (or any Associated Company); and
|
|
3.4.2 |
cease to apply with immediate effect to any matter arising out of or in connection with any dispute between the Director and a third party if the Company (or any
Associated Company) becomes aware that it has or may have a related dispute with the Director.
|
3.5 |
If the Director fails to comply with his obligations under clauses 3.2 and 3.3 in any material respect then the Director’s right under clause 2 to be indemnified in
respect of the relevant Claim shall be limited to the amount to which he would have been entitled in the absence of such failure.
|
3.6 |
Nothing in this Deed shall prevent the Director from exercising his right to resign as a director of the Company.
|
4. |
COMPANY’S LIABILITY AND DIRECTOR’S REMEDIES
|
4.1 |
If the Company denies it is liable to the Director in respect of any Claim under this Deed it will advance payment of all costs and expenses and legal and professional
fees on a current basis as they are incurred by the Director. In the event it is determined that the Company is not liable to the Director for such amounts then the Director shall immediately repay them to the Company,
|
4.2 |
The Director agrees that he will not, except as required by law, take any steps or legal proceedings for the winding-up, dissolution, administration or re-organisation
of, or for the appointment of a receiver, liquidator, administrator or similar officer to, the Company for the purpose of obtaining payment of any amounts payable to him under this Deed by the Company.
|
5. |
CONFIDENTIALITY
|
5.1 |
The Director and the Company shall keep confidential the existence and terms of this Deed and all information received or obtained as a result of entering into or
performing obligations under, or supplied by or on behalf of any person in the negotiations leading to, this Deed and shall use such information solely for the purpose of performing his or its obligations under this Deed.
|
5.2 |
The prohibition in clause 5.1 shall not apply to the extent that:
|
|
5.2.1 |
disclosure is required in order to comply with any applicable requirement of law (in particular, sections 236 to 238 of the Companies Act 2006), the Securities and
Exchange Commission or the New York Stock Exchange or of any person who has regulatory authority which has the force of law; or
|
|
5.2.2 |
disclosure is to be made to a director or a potential new director of the Company who wishes to enter into a similar deed of indemnity to this Deed; or
|
|
5.2.3 |
disclosure is to be made to the Director’s professional advisers, the Company’s insurance brokers (current or prospective), the Company’s insurers (current or
prospective) or the professional advisers of the Company’s insurers.
|
6. |
NOTICES
|
6.1 |
Any notice required to be given under this Agreement may, by prior agreement between the Director and the Company, be given by e-mail. In the absence of such agreement,
any notice required to be given under this Agreement shall be in writing and be delivered by hand or sent by pre-paid first-class post or recorded delivery (or airmail if overseas) or by commercial courier, to the other Party.
|
6.2 |
Notices shall be sent to the address of the relevant person set out in this Deed (provided that either party may, by written notice to the other, substitute another
address for the service of notices on him or it under this Deed).
|
6.3 |
Any notice is served and is deemed to have been duly received:
|
|
6.3.1 |
if delivered by hand, on the date and at the time when left at the address referred to above and addressed as referred to above;
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6.3.2 |
if sent by pre-paid first-class post or recorded delivery and addressed as referred to above, on the second business day after posting;
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|
6.3.3 |
if sent by airmail, six days after posting; or
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|
6.3.4 |
if delivered by commercial courier and addressed as referred to above, on the date and at the time when the courier’s delivery receipt is signed.
|
7. |
GENERAL
|
7.1 |
The Director irrevocably appoints the Company as his attorney on behalf of and in the name of the Director (or in the attorney’s own name), but at the cost of the
Company, to execute any document and do anything that the Director is obliged to do under this Deed or that the attorney reasonably considers to be necessary or desirable in exercise of any of the powers and authorities given to it
under this Deed.
|
7.2 |
On the expiry of all relevant limitation periods for bringing a claim against the Director in connection with any negligence, default, breach of duty or breach of trust
by the Director, the Company’s obligations under this Deed in respect of the Director shall cease (except to the extent that any such claim has been made within the relevant limitation period and is otherwise valid).
|
7.3 |
Any waiver of any right, power or remedy under this Deed must be in writing and may be given subject to any conditions thought fit by the Company. No waiver will take
effect if the person seeking the waiver has failed to disclose every material fact or circumstance which (so far as the person seeking the waiver is aware) has a bearing on its subject matter. Unless otherwise expressly stated, any
waiver shall be effective only in the instance and only for the purpose for which it is given.
|
7.4 |
No variation to this Deed shall be of any effect unless it is agreed in writing and signed by or on behalf of the Company and the Director.
|
7.5 |
Each of the provisions of this Deed is severable. If any such provision is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction
that shall not affect or impair the legality, validity or enforceability in that jurisdiction of the other provisions of this Deed, or of that or any provision of this Deed in any other jurisdiction.
|
7.6 |
This Deed may be executed in any number of counterparts and by the parties on different counterparts. Each counterpart shall constitute an original of this Deed but all
the counterparts shall together constitute one and the same Deed.
|
7.7 |
To the extent that any provision of this Deed is a provision referred to in section 232(2) of the Companies Act 2006, nothing contained in this Deed shall operate to
prevent such provision from being a qualifying third party indemnity provision for the purposes of section 234 of the Companies Act 2006 and a qualifying pension scheme indemnity provision for the purposes of section 235 of the
Companies Act 2006.
|
7.8 |
Neither the Company nor the Director may assign, transfer, charge or deal in any way with the benefit of, or any of its rights under or interest in, this Deed without the
prior written consent of, in the case of the Company, the Director or, in the case of the Director, the Company.
|
7.9 |
Nothing in this Deed is intended to confer on any person any right to enforce any term of this Deed which that person would not have had but for the Contracts (Rights of
Third Parties) Act 1999.
|
7.10 |
This Deed, and any non-contractual rights or obligations arising out of or in connection with it or its
subject matter, shall be governed by and construed in accordance with English law and the Company and the Director
irrevocably agree that the courts of England
and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Deed or its subject matter or formation.
|
Executed as a deed by
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)
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TRONOX HOLDINGS PLC
|
)
|
|||
on being signed by:
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)
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||
) |
Director
|
|||
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)
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||
in the presence of:
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)
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Signature of witness:
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Name:
|
||
Address:
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||
Occupation:
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Signed as a deed by
|
)
|
||
DIRECTOR NAME
|
)
|
||
in the presence of:
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)
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Signature of witness:
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Name:
|
||
Address:
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||
Occupation:
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Section
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Page
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1.
|
Definitions and Interpretation
|
3
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2.
|
Appointment and Term
|
9
|
3.
|
The Services
|
9
|
4.
|
Duties of the Client and the Depositary: Representations and Warranties
|
11
|
5.
|
Taxes
|
18
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6.
|
Fees and Expenses Payable by the Client
|
22
|
7.
|
Form, Issue and Transfer of Depositary Receipts
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22
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8.
|
Deposited Property; Representations and Warranties
|
25
|
9.
|
Withdrawal of Deposited Property
|
31
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10.
|
Compulsory Withdrawal
|
34
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11.
|
Fees and Expenses Payable by the Holder
|
35
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12.
|
Instructions
|
37
|
13.
|
Indemnification by the Client
|
38
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14.
|
[Intentionally Omitted]
|
41
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15.
|
Limitation of Liability
|
41
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16.
|
Custodian; Agents of the Depositary
|
49
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17.
|
Resignation of the Depositary
|
50
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18.
|
Termination
|
51
|
19.
|
Consequences of Termination
|
53
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20.
|
Amendment
|
54
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21.
|
Further Acknowledgments
|
55
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22.
|
Disclosure of Ownership
|
55
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23.
|
Agreement Not Exclusive
|
57
|
24.
|
Notices
|
57
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25.
|
Copies of Deposit Agreement
|
58
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26.
|
Force Majeure
|
58
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27.
|
Assignment
|
58
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28.
|
No Partnership
|
59
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29.
|
No Waiver
|
59
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30.
|
Invalidity and Severability
|
59
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31.
|
Variation
|
59
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32.
|
Entire Agreement
|
59
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33.
|
No Third Party Beneficiaries
|
60
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34.
|
Governing Law; Jurisdiction
|
60
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35.
|
Counterparts
|
61
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Schedule
|
||
SCHEDULE 1
|
THE DEPOSITARY SERVICES
|
47
|
SCHEDULE 2
|
THE CUSTODY SERVICES
|
48
|
SCHEDULE 3
|
THE FEES
|
49
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SCHEDULE 4
|
FORM OF CERTIFICATE
|
50
|
SCHEDULE 5
|
SECURITY TRANSFER FORM
|
63
|
SCHEDULE 6
|
POWER OF ATTORNEY
|
64
|
(1) |
Computershare Trust Company, N.A., a national association organized under the laws of the United States and whose registered office is at 250 Royall Street, Canton, MA
02021 (
Computershare
or the
Depositary
);
|
(2) |
Tronox Holdings plc, a company incorporated in England and Wales and whose registered office is 3rd Floor 25 Bury Street, London, SW1Y 2AL (the
Client
); and
|
(3) |
Exxaro Resources Limited, a public company with limited liability incorporated in the Republic of South Africa and whose registered office is at Roger Dyason Road,
Pretoria West, 0183 South Africa (
Exxaro
).
|
(A) |
Computershare, in its capacity as Depositary, has on the request of the Client, determined to constitute and issue from time to time, the Depositary Receipts pursuant to
the terms of this Deposit Agreement;
|
(B) |
Computershare or an affiliate thereof is acting as transfer agent and exchange agent and in connection with the issuance and listing of the Client’s ordinary shares;
|
(C) |
The Parties have agreed that Computershare shall, on the request of the Client, provide the Client with services as Depositary on the terms set out in this Deposit
Agreement; and
|
(D) |
Computershare has entered into a Custody Agreement pursuant to which it has appointed the Custodian to act as custodian for Deposited Property on the terms set out in
this Deposit Agreement.
|
1.
|
DEFINITIONS AND INTERPRETATION
|
|
1.1 |
In this Deposit Agreement, the following words and phrases shall bear the following meanings unless the context indicates otherwise:
|
|
1.2 |
Unless the context otherwise requires, all references to any Applicable Legislation, statute, statutory provision, rule, regulation or any requirement shall be construed
as including references to any modification, consolidation or re-enactment of the provision in question for the time being in force.
|
|
1.3 |
Unless otherwise stated, a reference to a Section, sub-section, Exhibit or Schedule (including part of a Schedule) is a reference to a section, sub-section, or schedule
(or any part) to this Deposit Agreement. The Schedules form part of this Deposit Agreement and shall have the same force and effect as if expressly set out in the body of this Deposit Agreement.
|
|
1.4 |
Section headings are for ease of reference only and do not affect the construction of this Deposit Agreement.
|
|
1.5 |
Except where the context otherwise requires, words denoting the singular include the plural and vice versa
and words importing a gender shall include any gender.
|
|
1.6 |
References to a “person” shall be construed so as to include any individual, firm, company, corporation, business trust, estate, trust, partnership, limited liability
company, association or joint venture, government, governmental subdivision, agency or instrumentality, public corporation or any other legal or commercial entity (whether or not any of the foregoing has a separate legal personality).
|
|
1.7 |
In construing this Deposit Agreement, general words shall not be given a restrictive meaning by reason of the fact that they are preceded or followed by words indicating
a particular class of acts, matters or things or by particular examples intended to be embraced by the general words.
|
|
1.8 |
Any provision to the effect that the Depositary shall not be liable in respect of a particular matter shall be construed to mean that the Depositary shall not have any
liability which the Depositary might, in the absence of such a provision, incur, whether the Depositary could incur such a liability: (A) under the terms of this Deposit Agreement (where such terms are express or implied by statue,
law or otherwise; (B) in tort; or (C) in any other way, but subject in each case to any limitations set forth in such provision.
|
|
1.9 |
Where the Custodian holds or will hold Company Securities on behalf of the Depositary for the account of the Holder, references to Company Securities being held by,
transferred to or transferred by the Depositary include a reference to Company Securities being held by, transferred to or transferred by the Custodian.
|
2.
|
APPOINTMENT AND TERM
|
|
2.1 |
The Client appoints Computershare to act on its behalf as Depositary and Computershare shall appoint the Custodian to act as custodian, in each case, with respect to
Deposited Securities and other Deposited Property and with effect from the Effective Date.
|
|
2.2 |
The Client appoints Computershare to act on its behalf as registrar in respect of the Depositary Receipts with effect from the Effective Date.
|
|
2.3 |
The appointment of Computershare under Sections 2.1 and 2.2 shall not be effective until such date (the “
Effective Date
”) on which Computershare shall have received an executed copy of each Legal Opinion and the Australian Reliance Letter, each of which shall conform to the requirements set out in this
Deposit Agreement. Prior to the Effective Date, Computershare shall have no obligation whatsoever to accept any deposits of Company Securities or to issue any Depositary Receipts, and shall not otherwise have any obligations or
duties hereunder. The appointment of Computershare shall continue from the Effective Date until the termination of this Deposit Agreement under Section 18 hereof or Computershare’s resignation pursuant to Section 17 hereof.
|
3.
|
THE SERVICES
|
|
3.1 |
Computershare shall have no liabilities, duties or obligations to the Client or the Holder except to
provide the Services (other than the Custody Services, which shall be provided by the Custodian)
to the extent they are specifically set forth herein and in
accordance with the requirements from time to time under Applicable Legislation. Without limiting the generality of the foregoing, Computershare shall have no liabilities, duties or obligations, including without limitation
fiduciary duties, solely by virtue of, or in a material respect due to, holding the Deposited Securities (or the Deposited Securities being held on its behalf) or the transfer of the Deposited Securities pursuant to the Holder’s or
the Client’s instructions, except for the liabilities, duties and obligations expressly owed to the Holder pursuant to the provisions hereof or under Applicable Legislation.
|
|
3.2 |
Computershare shall not be required to carry out any act under this Deposit Agreement, including without limitation the acceptance of Company Securities for Deposit
hereunder, which Computershare considers falls into one or more of the following:
|
|
(a) |
in the judgment of its legal counsel (whether internal or external), will, or would reasonably be expected to, be contrary to or breach (i) any Applicable Legislation or
(ii) any requirement of any government or governmental authority, body or agency or any regulatory authority, or (iii) any provision of this Deposit Agreement; or
|
|
(b) |
would reasonably be expected to cause it to suffer or incur any financial liability or any financial obligation of any kind or cause it to be liable to any person
(including any liability for Taxes), except for (i) any financial liability or financial obligation (other than a liability or obligation relating to UK stamp duty or UK stamp duty reserve tax) in respect of which the Client provides
written confirmation that Computershare is fully indemnified under this Deposit Agreement, and for which the Client provides a bond or advances the requisite amounts should Computershare so request, (ii) expenses for which
Computershare is entitled to reimbursement from the Client or the Holder under this Deposit Agreement and for which Computershare is reasonably comfortable that such reimbursement will be timely made to it, (iii) general overhead
expenses including salaries, and (iv) any liability for UK stamp duty or UK stamp duty reserve tax arising in connection with a deposit of Company Securities with the Depositary occurring subsequent to the date hereof, in respect of
which (a) Computershare has received evidence reasonably satisfactory to Computershare of payment of such stamp duty and/or stamp duty reserve tax in full by the Client or (b) the Client has provided cleared funds to Computershare in
the full amount of such stamp duty and/or stamp duty reserve tax, and Computershare has paid the applicable tax to HMRC without unreasonable delay and has received confirmation that such payment has been received,
provided
that in either such case under this clause (iv) Computershare shall have the right, prior to carrying out the relevant act under this Deposit Agreement,
to receive a written opinion from the Client’s UK tax advisers confirming the calculation of the amount of UK stamp duty and/or UK stamp duty reserve tax payable in connection with such act; or
|
|
(c) |
in the reasonable judgment of its legal counsel (whether internal or external), will or will likely require it to have or obtain a legal status, or to obtain any license,
permit, authorization, consent, approval or other permission, in any case other than any legal status or licenses, permits, authorizations, consents, approvals or other permissions that Computershare was legally required to have under
Applicable Legislation as of the date of this Deposit Agreement; or
|
|
(d) |
in the reasonable judgement of its legal counsel (whether internal or external), will or will likely require it to comply with any other Applicable Legislation,
compliance with which Computershare considers, acting reasonably, is unduly onerous for it; or
|
|
(e) |
which would have a material adverse impact on Computershare including a material adverse impact on its business.
|
4.
|
DUTIES OF THE CLIENT AND THE DEPOSITARY; REPRESENTATIONS AND WARRANTIES
|
|
4.1 |
The Client shall:
|
|
(a) |
provide all information, data and documentation reasonably required by Computershare or its agents to properly carry out the Services, including (to the extent available
to the Client) information which concerns or relates to Computershare’s obligations under this Deposit Agreement;
|
|
(b) |
ensure that all information, data and documentation provided by it to Computershare or its agents is accurate and complete in all material respects and not misleading;
|
|
(c) |
promptly provide any other information and assistance reasonably requested by Computershare in connection with this Deposit Agreement; and
|
|
(d) |
to the extent that (i) the Client has been advised by qualified UK legal counsel, or has reason to believe, that a clearance application to HMRC would be beneficial in
respect of any transaction(s) to be entered pursuant to this Deposit Agreement involving Company Securities or Depositary Receipts or (ii) Computershare reasonably believes that a clearance application to HMRC would be beneficial in
respect of any such transaction(s), other than those transactions in respect of which clearance was sought in the Clearance Applications (as defined in Section 5.2(a)(i) below), then in any such case the Client shall promptly file
appropriate clearance notifications and/or applications with HMRC in connection with the transactions contemplated by this Deposit Agreement, and (except in the case of the Clearance Applications) provide drafts thereof to the
Depositary and the Custodian with sufficient time for them to review such notifications and/or applications prior to any filings being made.
|
|
4.2 |
If the Client issues additional Company Securities, rights to subscribe for Company Securities, securities convertible into or exchangeable for Company Securities or
rights to subscribe for any such securities, the Client shall, if reasonably requested by Computershare, provide to Computershare, in a reasonable time and at the Client’s own cost, a legal opinion or legal opinions provided by legal
advisers reasonably acceptable to Computershare and addressed to Computershare or in respect of which Computershare may rely in relation to securities laws, tax laws and/or other Applicable Legislation, and dealing with such other
reasonable issues as may be reasonably requested by Computershare, in form and substance reasonably satisfactory to Computershare in relation to the provision of the Services, or shall reimburse Computershare’s properly incurred
attorneys’ fees and costs in respect of obtaining such legal opinions. The scope of such requested legal opinions shall be communicated to the Client in writing by Computershare. For the avoidance of doubt, the foregoing shall not
apply to the issue of Company Securities by the Client upon the occurrence of the exchanging by way of an Australian court approved scheme of Tronox Limited shares of the Holder for new Company Securities (such transaction being the “
Scheme of Arrangement
” and the Company Securities to be issued in such transaction being the “
Scheme of Arrangement Shares
”), as such Scheme of Arrangement Shares are to be covered in the US Legal Opinion and the UK Legal Opinion.
|
|
4.3 |
Computershare shall not be required to transfer Deposited Securities except to (i) any replacement depositary appointed by the Client, (ii) any Holder surrendering
Depositary Receipts for cancellation or (iii) Cede & Co. (for deposits into DTC), in each case subject to compliance with the terms of this Deposit Agreement, and provided that no such transfer shall be made unless and until any
Transfer Restrictions shall have lapsed or otherwise will not be breached, and until all transfer requirements of Computershare have been satisfied and all required documentation has been furnished, provided that in the case of
clauses (i) and (ii) the Deposited Securities may remain subject to restrictions under U.S. securities laws following the transfer thereof.
|
|
4.4 |
The Client warrants to Computershare that a Security Transfer Form transferring Deposited Securities to the Custodian when duly executed, meeting Computershare’s standard
requirements, and delivered to the Custodian or lodged with the Client’s transfer agent for registration will constitute legal, valid and binding and enforceable dispositions and obligations of each respective transferor in accordance
with its terms and where relevant the Articles of Association.
|
|
4.5 |
With the exception of those transactions involving the Depositary described in this Deposit Agreement:
|
|
(a) |
the Client shall give Computershare as much advance notice as reasonably practicable of any corporate action or changes to its business or capital structure during the
term of this Deposit Agreement which relates to or could have a material effect on the Deposited Securities or the provision of the Services, including but not limited to the declaration or payment of dividends, any merger,
reorganisation, rights issue, takeover, creation of different or additional share classes or share exchange; and
|
|
(b) |
Computershare’s obligations to process any corporate action shall be subject to a separate agreement upon terms and conditions mutually agreeable to the parties and may
require the delivery of certain legal opinions addressed to Computershare, or in respect of which Computershare may rely, in forms reasonably satisfactory to Computershare and, with respect to services to be provided by Computershare
that are not specifically covered in this Deposit Agreement, the agreement by the Client and Computershare as to the services to be provided by Computershare in respect of the corporate action, the terms of the provision of such
services and the relevant fees, and dealing with such other reasonable issues as may be requested by Computershare; and
|
|
(c) |
Computershare shall not be required to convert cash dividends paid on Deposited Securities into a currency other than the currency in which such dividends are paid,
unless otherwise mutually agreed by Computershare and the Client.
|
|
4.6 |
The Client represents and warrants to Computershare that at such times as provided below:
|
|
(a) |
each Deposited Security is:
|
|
(i) |
at the date of issue and/or delivery to the Custodian, and at any such time prior to the cancellation of the Depositary Receipts as the Client may instruct Computershare
to transfer the Deposited Security to any replacement depositary, under its terms and conditions, freely transferable, other than in respect of transfer restrictions imposed by the U.S. securities laws and any transfer restrictions
created by the Holder without participation of the Client, and, in particular (but without limitation) is transferable to any such entity without restriction between the Client and the Holder, free from any equity, set-off or
counter-claim between the Client and the Holder
;
|
|
(ii) |
at the date of deposit by the Client with the Custodian, duly authorized, validly issued and outstanding, fully paid and non-assessable, free of any pre-emptive or
similar rights, free and clear of any lien, encumbrance, security interest, charge, mortgage or adverse claim, identical in all respects to each other Deposited Security of the same class;
|
|
(iii) |
at the date of deposit, either (x) duly registered under each of the Securities Act and the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”) pursuant to effective registration statements filed under each such Act, or (y) exempt from the registration requirements of the Securities Act and the
Exchange Act; and
|
|
(iv) |
at the date of deposit, in compliance with all applicable state securities laws, and all appropriate state securities law filings with respect to such Deposited Security
have been made or a valid exemption from such filing requirements is applicable.
|
|
(b) |
each Depositary Receipt is at any such time as the Client may instruct Computershare to transfer the Deposited Property underlying the Depositary Receipts to a
replacement depositary nominated by the Client, under its terms and conditions, freely transferable, other than in respect of any restrictions on account of Exxaro’s status as an ”affiliate” of the Client for purposes of Rule 144(c),
(e), (f) and (h) under the Securities Act and transfer restrictions created by the Holder without participation of the Client and, in particular (but without limitation) is transferable to any such entity without restriction between
the Client and the Holder, free from any equity, set-off or counter-claim between the Client and the Holder;
|
|
(c) |
The Client will promptly notify Computershare in the event any of the representations or warranties in this Section 4.6 should become incorrect.
|
4.7
|
The Holder represents and warrants to Computershare at such times as provided below:
|
|
4.8 |
The Client undertakes to the Depositary for the duration of this Deposit Agreement that the Depositary Receipts shall not, in consequence of the Client issuing Deposited
Securities or Computershare holding the Deposited Property or issuing the Depositary Receipts, or for any other reason, be subject to any registration requirements under U.S. (Federal or State) securities laws;
|
|
4.9 |
(a) On or prior to the closing date of the Scheme of Arrangement (the “
Closing Date
”),
United States legal counsel to the Client shall deliver a legal opinion to the Depositary in form and substance satisfactory to the Depositary, dealing with such issues as may be requested by the Depositary (the “
US Legal Opinion
”), and English legal counsel to the Client reasonably acceptable to the Depositary shall deliver a legal opinion to the Depositary
substantially in the form attached hereto as Exhibit A (the “
UK Legal Opinion
”). In addition, on or prior to the Closing Date the Depositary
shall have received a letter from Australian counsel to the Client, in form and substance satisfactory to the Depositary (the “
Australian Reliance
Letter
”), confirming that the Depositary and the Custodian are entitled to rely upon the legal opinion or opinions issued by such Australian counsel relating to the Scheme of Arrangement and Section 3(a)(10) of the Securities
Act (which opinion of Australian counsel will be referenced in the US Legal Opinion).
|
4.10 |
Computershare represents and warrants to the Client and the Holder that:
|
|
|
(a)
as of the date hereof, Computershare is not a company incorporated under the law of an
EU member state and is a person resident only in the United States whose business is or includes issuing “depositary receipts” for “relevant securities” (within the meaning of section 69 of the Finance Act) and “depositary receipts”
for “chargeable securities” (within the meaning of sections 94 and 99 of the Finance Act) for the purposes of sections 67(6), 93(2) and 97B of the Finance Act, and Computershare undertakes to the Client that it shall so remain for the
duration of the Deposit Agreement, other than as a result of changes in Applicable Law; and
|
|
(b)
as of the date hereof the Custodian is not a company
incorporated under the law of an EU member state and the Custodian’s business is exclusively that of holding “relevant securities” (as defined in section 69(3) of the Finance Act) and “chargeable securities” (as defined in section 99
of the Finance Act) (i) as nominee or agent for a person whose business is or includes issuing depositary receipts for the purposes of sections 67(6), 72A(2)(a), 93(3) and 97B(2)(a) of the Finance Act, and (ii) for the purposes of
such part of the business of the person referred to in (i) as consists of issuing “depositary receipts” for “relevant securities” and for “chargeable securities” for the purposes of sections 67(6), 72A(2)(a), 93(2) and 97B(2)(a) of
the Finance Act, and Computershare undertakes to the Client that it will procure that the Custodian shall so remain for the duration of this Deposit Agreement, other than as a result of changes in Applicable Law.
|
|
4.11 |
Prior to the Effective Date, Computershare shall deliver to the Client and Exxaro a writing signed by Computershare and the Custodian, pursuant to which: (A) the
Custodian acknowledges that (i) the Deposited Securities are not intended to, and shall not as a result of the transactions contemplated by this Deposit Agreement, constitute assets of the Custodian, (ii) the Custodian has no
beneficial ownership interest in the Deposited Securities, and (iii) the Custodian is not permitted to take any action with respect to the Deposited Securities except pursuant to the terms of the custody agreement between the
Custodian and the Depositary (the “Custody Agreement”), and/or pursuant to instructions issued to the Custodian by the Depositary in accordance with such Custody Agreement; and (B) Computershare will procure that the Custodian shall
(i) not grant any encumbrance, charge or similar rights in the Deposited Property in favor of any of its shareholders or creditors, except to such extent required by law, (ii) not take or permit any action that may result in the
transfer of the Deposited Property in any manner, directly or indirectly, except as instructed by Computershare, (iii) hold the Deposited Securities as nominee for Computershare in an account which will consist solely of Company
Securities represented by depositary receipts, and identify in its books that the Deposited Property is held for the account and to the order of Computershare; and (iv) comply in all material respects with all laws, rules and
regulations applicable to its exercise of any of its rights and obligations under the Custody Agreement.
|
5.
|
TAXES
|
|
5.1 |
The Parties consider that neither UK stamp duty reserve tax nor UK stamp duty should apply under the Finance Act to (A) the issue of Depositary Receipts in relation to
the issuance Scheme of Arrangement Shares to the Custodian as nominee for the Depositary, insofar as such issuances form part of an arrangement to issue chargeable securities to a depositary receipt system or (B) a cancellation of
such Depositary Receipts and the transfer of the Scheme of Arrangement Shares or the Flip-in Shares by the Custodian to the nominee for DTC, insofar as this constitutes a transfer of chargeable securities from a depositary receipt
system to a clearance service in accordance with the requirements of section 97B (and not within section 97C) of the Finance Act.
|
|
5.2 |
The Client represents and warrants to Computershare that, as of the Commencement Date:
|
|
(a) |
prior to the date of this Deposit Agreement
|
|
(i) |
CMS Cameron McKenna Nabarro Olswang LLP (the “
Legal Adviser
”) has submitted
clearance applications to HMRC dated 25 January, 14 February and 1 March 2019 (together, the “
Clearance Applications
”) (complete copies of which
Clearance Applications have been provided to Computershare),
|
|
(ii) |
The Legal Adviser on behalf of the Client has received responses from HMRC to the Clearance Application dated 25 January 2019 in a form consistent with the terms of that
Clearance Application which confirms that none of the transactions involving Computershare or the Custodian in respect of which clearance was sought in that Clearance Application, if implemented as described in that Clearance
Application, give rise to UK stamp duty and/or UK stamp duty reserve tax, and that such responses have not been amended or revoked;
|
|
(b) |
on or prior to the Closing Date, the Legal Adviser, on behalf of the Client shall deliver a legal opinion to the Client, which shall be co-addressed to the Depositary or
on which the Depositary can rely, and which shall be substantially in the form attached hereto as Exhibit B (the “
Tax Opinion
”); in the event
that any material changes are made to the Tax Opinion as a result of the Scheme of Arrangement occurring after the effective date of Brexit, or for any other reason, such changes must be acceptable to the Depositary in its sole
discretion, and if the Depositary deems such revised opinion not to be acceptable, this Deposit Agreement shall not become effective and the Depositary shall have no obligation whatsoever to accept any deposits of Company Securities
or to issue any Depositary Receipts, and shall not otherwise have any obligations or duties hereunder.
|
|
(c) |
on or prior to the closing date for the Flip-in Transaction, the Legal Adviser shall deliver a legal opinion reasonably acceptable to the Depositary, which opinion (the “
Subsequent Tax Opinion
”) shall be substantially identical to the Tax Opinion attached hereto as Exhibit B, except that the Subsequent Tax Opinion
shall pertain to the Flip-in Shares instead of the Scheme of Arrangement Shares; prior to its receipt of the Subsequent Tax Opinion, the Depositary shall have no obligation whatsoever to accept any deposits of Flip-in Shares or to
issue any Depositary Receipts representing the Flip-in Shares; and
|
|
(d) |
that in connection with any additional deposits of Company Securities made by the Client or the Holder after the Effective Date or in connection with any other
transactions involving Company Securities or Depositary Receipts contemplated by this Deposit Agreement, except for those transactions in respect of which clearance was obtained in the Clearance Application, prior to the effective
date of such deposit, the Legal Advisers or other qualified UK legal counsel will confirm to the Client whether (to the extent that a clearance application to HMRC has not already been made) any clearance application to HMRC would be
beneficial in respect thereof and, if reasonably requested by Computershare, provide a legal opinion as to whether such deposit or other transaction would give rise to UK stamp duty and/or UK stamp duty reserve tax payable by either
the Depositary or the Custodian. For the avoidance of doubt, the foregoing shall not apply to matters covered by the Tax Opinion or the Subsequent Tax Opinion.
|
|
5.3 |
The Client undertakes to Computershare to notify Computershare promptly in writing if at any time any of the representations or warranties set out in Section 5.2 become
incorrect. In the event that Section 5.2 becomes incorrect, Computershare reserves the right to immediately terminate this Deposit Agreement.
|
|
5.4 |
In the event that any charge to UK stamp duty or UK stamp duty reserve tax is payable by Computershare in connection with the deposit of any Company Securities, the
issuance of Depositary Receipts or any other transactions contemplated by this Deposit Agreement or pursuant to any instruction given to Computershare, Computershare shall not be required to accept such deposit of Company Securities,
to issue Depositary Receipts, enter into such transaction or execute such instruction, in each case unless and until the Client shall have first either furnished evidence of payment of any and all UK stamp duty reserve tax and/or UK
stamp duty owing in connection therewith (in a form acceptable to Computershare) or Computershare has been funded in full by the Client with cleared funds in the amount of such UK stamp duty reserve tax or UK stamp duty. Section 5.6
and Sections 6.2 to 6.4 (with the exception of the last sentence of Section 6.3) apply to this Section 5.4 and ‘Fees’ should be read to include the payment of stamp duty reserve tax or stamp duty as described herein. In the absence of
(i) evidence satisfactory to Computershare of payment of such UK stamp duty and/or UK stamp duty reserve tax in full by the Client or (ii) receipt of cleared funds from or on behalf of the Client as provided above, Computershare
reserves the right to take any reasonable action, or reasonably omit to take any action, in each case, where such action or omission would result in Computershare avoiding any liability for UK stamp duty reserve tax or UK stamp duty.
If Computershare is refunded or otherwise receives back any UK stamp duty or UK stamp duty reserve tax which was previously paid or funded on its behalf by the Client, Computershare may use such amount to discharge any outstanding
Liability and shall refund the balance to the Client.
|
|
5.5 |
In addition to any rights and remedies to which Computershare is entitled under Section 5.4, to the extent that Computershare (or its nominee) is accountable for and/or
primarily liable and is required to pay for UK stamp duty reserve tax (or UK stamp duty) pursuant to the Finance Act (or otherwise under other UK enactments or regulations), in respect of any chargeable securities transferred or
issued to Computershare by or on behalf of the Holder, the Holder agrees to pay, before such transfer or issuance, to Computershare in cleared funds, or to HMRC on behalf of Computershare, an amount equal to the stamp duty reserve
tax (or stamp duty) for which Computershare is liable in respect of such transfer or issuance.
|
|
5.6 |
In addition to the foregoing, all fees and other sums payable by the Client under this Deposit Agreement are exclusive of all Taxes, and the Client shall, in addition to
any Fees, pay any Taxes due thereon (taking into account any credit, relief or exemption actually received by Computershare) so that the net amount received by Computershare is not less than the amount which Computershare would have
received had no such Taxes been due, and shall promptly deliver to Computershare all official receipts evidencing payment of such Taxes.
|
|
5.7 |
Notwithstanding anything to the contrary contained herein, the Client is responsible for all taxes, levies, duties, and assessments levied on the services provided under
this Deposit Agreement (other than Excluded Taxes) (collectively, “
Transaction Taxes
”). Computershare shall be responsible for collecting and
remitting Transaction Taxes in all jurisdictions in which Computershare is registered to collect such Transaction Taxes. Computershare shall invoice Client for such Transaction Taxes that it is obligated to collect upon the
furnishing of services hereunder. Computershare shall timely remit to the appropriate governmental authorities all such Transaction Taxes that Computershare collects from Client. To the extent that Client provides Computershare with
valid exemption certificates, direct pay permits, or other documentation that exempts Computershare from collecting Transaction Taxes from Client, invoices issued for services provided after Computershare’s receipt of such
certificates, permits, or other documentation will not reflect exempted Transaction Taxes. Computershare shall be solely responsible for the payment of all personal property taxes, franchise taxes, corporate excise or privilege
taxes, property or license taxes and Excluded Taxes in each case arising from or in connection with the services provided herein.
|
6.
|
FEES AND EXPENSES PAYABLE BY THE CLIENT
|
|
6.1 |
The Client shall pay Computershare the Fees in respect of the Services provided by Computershare in accordance with this Section 6 and Schedule 3.
|
|
6.2 |
Interest is payable on the balance of any overdue invoice, not otherwise disputed in good faith, at an annual rate equal to 6%. Interest shall be calculated daily, on
the outstanding balance, until receipt by Computershare of the Client’s payment in cleared funds.
|
|
6.3 |
Notwithstanding the right to charge interest under Section 6.2, if the Client fails to (i) pay the Fees not otherwise disputed in good faith within 90 days of the date of
Computershare’s invoice or (ii) timely pay the undisputed portions of two consecutive invoices, such failure shall constitute a material breach of this Deposit Agreement by Client. Notwithstanding any terms to the contrary elsewhere
in this Deposit Agreement, Computershare may immediately terminate this Deposit Agreement for such material breach by providing written notice of such termination to the Client, and Computershare shall not be obligated to provide
Client with 30 days to cure such breach. Computershare shall notify Exxaro within a reasonable period of the Client’s failure to pay any Fees hereunder. Computershare acknowledges and agrees that any failure by the Client to make a
payment of Fees may be cured by payment by the Holder on behalf of the Client and, if payment in full is received on or prior to such 90th day and is expressly identified by the Holder as a payment made on behalf of the Client, the
Client’s failure to have timely paid such Fees shall not give rise to a material breach hereunder.
|
|
6.4 |
Failure to make payment in accordance with Section 6.1 constitutes a breach of contract and notwithstanding any rights which Computershare may have under Sections 6.2 and
6.3, all other rights or remedies (either contractual or otherwise as may arise by common law or statute) of Computershare are reserved.
|
7.
|
FORM, ISSUE AND TRANSFER OF DEPOSITARY RECEIPTS
|
|
7.1 |
The Depositary shall only issue and transfer Depositary Receipts as contemplated by this Deposit Agreement. The Client and each Holder hereby agrees that it shall
provide to the Depositary within a reasonable period prior to requesting the Depositary to issue or transfer Depositary Receipts with the information that the Depositary reasonably requires to allow the Depositary to comply with
Applicable Legislation.
|
|
7.2 |
Company Securities shall be deposited hereunder by the issuance or transfer of such Company Securities to the Custodian on behalf of the Depositary. Upon such deposit,
subject to the provisions of this Deposit Agreement, the Depositary shall issue to the Holder such number of Depositary Receipts that represent the number of Company Securities so deposited. Depositary Receipts shall be issued in
certificated form. The Depositary confirms that the Deposited Securities are not intended to, and shall not, constitute assets of the Depositary, the Custodian or their nominees. Beneficial ownership in the Deposited Securities is
intended to be, and shall at all times during the term of this Deposit Agreement continue to be, vested solely in the Holder of the Depositary Receipts representing such Deposited Securities.
|
|
7.3 |
The Depositary shall maintain, at an office which may, but need not be, the Depositary’s registered office, a separate register in respect of the Depositary Receipts for
the registration, registration of transfer, combination and split-up of Depositary Receipts, and facilities for the delivery and receipt of Depositary Receipts. Each such register shall at reasonable times be open for inspection by
the Holder for a purpose related to the interest of the business of the Client or this Deposit Agreement. The Depositary may close any such register at any time or from time to time(a) in the ordinary course of business, (b) in order
to comply with Applicable Legislation, or (c) when deemed reasonably necessary or advisable by it in connection with the performance of Services, or any of them.
|
|
7.4 |
Title to a Depositary Receipt shall be evidenced by entry on the Depositary Receipt Register. The Depositary, notwithstanding any notice to the contrary, may treat the
person in whose name a Depositary Receipt is registered on the Depositary Receipt Register as the absolute owner thereof for all purposes and neither the Depositary nor the Client will have any obligation or be subject to any
liability under this Deposit Agreement to any holder of a Depositary Receipt, unless such holder is the Holder thereof.
|
|
7.5 |
[Intentionally Omitted]
|
|
7.6 |
The Depositary shall be entitled to refuse to accept for transfer any Depositary Receipts or suspend the registration of transfer of Depositary Receipts if:
|
|
(a) |
it reasonably believes that transfer would result in violation of Applicable Legislation; or
|
|
(b) |
if any presentation of a transfer fails to meet applicable transfer requirements or is otherwise inconsistent with industry standards.
|
|
7.7 |
The Depositary shall not be bound to enquire whether any transactions in Depositary Receipts are in progress, or in the process of being transferred, before deciding to
suspend the registration of transfer of Depositary Receipts in accordance with Section 7.6 and shall incur no liability to the Client, any Holder or potential Holder or Recipient by reason of such suspension.
|
|
7.8 |
Neither the Client nor the Depositary shall arrange for Depositary Receipts to be admitted to any stock exchange or quoted or permitted to be dealt in or on any other
market.
|
|
7.9 |
Depositary Receipts have not been registered under the Securities Act or any other securities legislation of any jurisdiction and may not be offered, sold, pledged, or
otherwise distributed or transferred except pursuant to an effective registration statement under the Securities Act or pursuant to an exemption from registration under the Securities Act. The Depositary shall be under no obligation
to arrange for any registration or similar requirement under the Securities Act or any other securities legislation or Applicable Legislation of any jurisdiction. The Client shall provide to the Depositary in writing the legend(s) to
be affixed to the Depositary Receipts and notated in the Depositary Receipt Register, which legends shall (i) be in a form reasonably satisfactory to the Depositary and (ii) contain the specific circumstances under which the
Depositary Receipts may be transferred. In the event that any Deposited Company Securities contain a stock legend describing the conditions of any Transfer Restrictions, the Client and the Depositary shall ensure that the Depositary
Receipts representing such Deposited Property and the Depositary Receipt Register shall contain a stock legend or notation replicating the conditions of the relevant Transfer Restrictions. The Depositary Receipts shall not be eligible
for inclusion in any book-entry settlement system, including, without limitation, DTC.
|
|
7.10 |
Depositary Receipts may be cancelled by the Depositary pursuant to Sections 9 and 10 and, so far as the Depositary considers appropriate, in the circumstances
contemplated in Sections 11.1, 15.12 and 15.14.
|
|
7.11 |
The Holder will implement reasonable controls and procedures to avoid the loss, theft and/or destruction of Certificates issued to it.
If a Certificate issued to a Holder is:
|
|
(a) |
damaged or defaced; or
|
|
(b) |
reported to be lost, stolen or destroyed,
|
|
(x) |
returns the certificate which is to be replaced to the Depositary if it is damaged or defaced; and
|
|
(y) |
in the case of the loss, theft or destruction of a Certificate, provides an open penalty surety bond meeting the Depositary’s requirements or other indemnity acceptable
to the Depositary in its discretion, which may be an indemnity from either the Holder or the Client as determined by the Depositary in its discretion.
|
8.
|
DEPOSITED PROPERTY; REPRESENTATIONS AND WARRANTIES
|
|
8.1 |
Each person depositing Company Securities and to whom Depositary Receipts are to be issued pursuant to this Deposit Agreement and each Holder shall be bound and required
to give such warranties and certifications to the Depositary as the Depositary may reasonably require. Each person depositing Company Securities and to whom Depositary Receipts are to be issued pursuant to this Deposit Agreement and
each Holder shall be taken to warrant that Company Securities which are transferred or issued to the Custodian with respect to which Depositary Receipts are to be issued or are so issued are legally obtained by the person depositing
such Company Securities and the person to whom Depositary Receipts are to be issued, such person is duly authorized to deposit such Company Securities under this Deposit Agreement and has effected a legal, valid and binding
disposition of such Company Securities to the Depositary or the Custodian, such Company Securities are being transferred or, as the case may be, issued free and clear of all liens, charges, encumbrances, security interests, adverse
claims or other third party interests, that such transfers or, as the case may be, such issues of Company Securities to the Custodian are not in contravention of any contractual obligation binding on such person or the person making
the transfer or of any applicable law or regulation or order binding on or affecting such person or the person making the transfer, and that the deposit of such Company Securities is not required to be registered under the Securities
Act.
The Depositary shall be entitled to refuse to accept Company Securities for deposit hereunder (i) whenever it is notified in writing by
the Client that the Client has restricted the transfer thereof to comply with ownership restrictions under Applicable Legislation; (ii) if it reasonably believes that any relevant transfer is invalid or ineffective to pass title in
Company Securities under any Applicable
Legislation; (iii) if the Depositary is notified by or on behalf of the Client that such deposit or the
issue of Depositary Receipts pursuant to this Deposit Agreement would or might result in the contravention of any Applicable Legislation; or (iv) such deposit fails to comply with any applicable requirements of this Deposit Agreement
or with such requirements as the Depositary may establish consistent with this Deposit Agreement.
|
|
8.2 |
In acting hereunder the Depositary shall have only those duties, obligations and responsibilities expressly undertaken by it in this Deposit Agreement and does not assume
any relationship of trust for or with the Holders or any other person.
|
|
8.3 |
Subject to the Depositary’s receipt of any legal opinions requested in accordance with Section 4.2 of this
Deposit Agreement and such other arrangements and agreements as the Depositary may reasonably require, the Depositary shall to the extent practicable, pass on, or exercise on behalf of, and shall instruct the Custodian to the extent
practicable, to pass on to, or exercise on behalf of, the relevant Holder(s) all rights and entitlements which it or the Custodian receives in respect of Deposited Securities in accordance with this Deposit Agreement, subject to the
following:
|
|
(a) |
Any such rights or entitlements to cash distributions will, to the extent permissible and practicable, be distributed to the Holder subject to appropriate adjustments
for taxes withheld and deduction of the Depositary’s and/or its agents’ out-of-pocket expenses, including fees payable to any third party. The Depositary will use reasonable efforts to coordinate with the Holder regarding the Holder’s
submission of documentation for the purpose of claiming any available exemptions from withholding or reductions in the rate of withholding. Any cash distributions will be distributed to Holder in the currency in which such
distributions are paid. Any such rights or entitlements to information, to make choices and elections, and to attend and vote at meetings of shareholders shall, subject to the other provisions of this Deposit Agreement, be passed on
to the Holder without unreasonable delay upon being received by the Custodian in the form in which they are received by the Custodian together with such amendments and such additional documentation as are received by the Custodian and
such additional documentation as the Depositary may deem necessary to effect such passing on.
|
|
(b) |
Any such rights or entitlements to scrip dividends, to bonus issues or arising from capital reorganizations shall be passed on to the relevant Holder(s):
|
|
(i) |
by means of the consolidation, sub-division, cancellation and/or issue of Depositary Receipts to reflect the consolidation, sub-division and/or cancellation of the
underlying Deposited Securities or the issue of additional Depositary Receipts to the relevant Holder(s) to reflect the issue of additional Company Securities to the Custodian; and
|
|
(ii) |
in either case promptly following such consolidation, sub-division and/or cancellation or issue of such Company Securities as the case may be.
|
|
(c) |
If arrangements are made which allow the Holder to take up any rights in Company Securities requiring further payment from the Holder, the Holder must, if it wishes the
Depositary to exercise such rights on its behalf, provide the Depositary with cleared funds before the relevant payment date or such other due date that the Depositary may notify the Holder in respect of such rights.
|
|
(d) |
The Depositary will not exercise choices, elections or voting rights or otherwise exercise discretion in connection with any distributions or corporate actions in the
absence of express instructions from the relevant Holder.
|
|
(e) |
Unless the Depositary notifies the Holder otherwise, any instructions to vote (together with any funds required to be paid in carrying out any such action) must reach the
Depositary (in writing) at least five Business Days before the meeting in question or as otherwise advised to the Holder by the Depositary in writing.
|
|
(f) |
The Depositary may in such circumstances as it considers appropriate, including without limitation in connection with the operation of arrangements for enabling the
Holder to exercise or direct the exercise of voting rights attaching to Company Securities, and/or to receive information from or relating to the Client provide to the Client or any agent of the Client details of the identity of the
Holder and the number or amount of Depositary Receipts held by the Holder on any relevant date.
|
|
(g) |
The Depositary shall re-allocate any Company Securities or distributions which are allocated to the Custodian and which arise automatically out of any right or
entitlement to Deposited Securities to the Holder provided that the Depositary shall not be required to account for any fractions of shares or fractions of one cent arising from such re-allocation.
|
|
(h) |
Any other rights or entitlements shall be passed on to the Holder in such manner and by such means as the Depositary shall in its reasonable discretion determine.
|
|
(i) |
The Depositary shall, at the Client’s expense, cause any notices, materials, documents or information received from the Client specifically for distribution to the Holder
to be passed to the Holder in a commercially reasonable time.
|
|
8.4 |
The Depositary will not be bound by or compelled to recognize or take notice of, nor to see to the carrying out of, any express, implied or constructive trust or other
interest in respect of the Deposited Property, or any mortgage, charge, pledge or other claim in favor of any other person in the Deposited Property even if the Depositary has actual or constructive notice of such trust, interest or
claim. The receipt by a Holder (or by a Holder’s personal representatives or nominated transferee in accordance with Section 9) of Depositary Receipts will free the Depositary from responsibility to any such other person in respect
of any such interest. The Depositary may ignore any notice it receives of the right, title, interest or claim of any other person to an interest in the Deposited Property, except where the interest is conferred by operation of law.
|
|
8.5 |
If any governmental or administrative authorisation, consent, registration or permit or any report to any governmental or administrative authority is required in order
for the Depositary to receive Company Securities to be deposited hereunder and/or for Depositary Receipts representing the same to be issued pursuant to this Deposit Agreement, or in order for Company Securities or other securities or
property to be distributed or to be subscribed or acquired in accordance with the provisions prescribed in or pursuant to this Deposit Agreement, subject to the prior consent of the Depositary (which shall not be unreasonably
withheld) the Client shall apply at its own cost for such authorisation, consent, registration, or permit or file such report within the time required. The Depositary may apply reasonable conditions to the provision of its consent.
The Depositary shall not be bound to issue or transfer Depositary Receipts or distribute, subscribe or acquire Company Securities or other property with respect to which such authorisation, consent, registration, permit or such report
shall not have been obtained or filed, as the case may be, and shall have no duties to obtain any such authorisation, consent, registration or permit or to file any such report except in circumstances where the same may only be
obtained or filed by the Depositary and only without unreasonable burden or expense.
|
|
|
8.6 | Voting; Holder Consents and Proxies |
|
|
9. | WITHDRAWAL OF DEPOSITED PROPERTY |
|
9.1 |
The Holder may request withdrawal of, and the Depositary shall thereupon relinquish, the Deposited Property
attributable to any Depositary Receipts upon receipt by the Depositary of the relevant Certificate(s), at the specified address of the Depositary or as otherwise notified in advance to the Holder, accompanied by:
|
|
(a) |
a duly executed and completed Depositary Receipt Withdrawal and Transfer Form with a Medallion Signature Guarantee (in a form approved by the Depositary) instructing the
Depositary to cause the Deposited Property being withdrawn to be delivered to the Holder at (or, to the extent in book-entry form, from) the specified address of the Custodian, or (at the request, risk and expense of the Holder and
only if permitted by Applicable Legislation from time to time) at the specified office of the Depositary or to the Client or Cede & Co., as nominee for DTC, in each case as designated in the Depositary Receipt Withdrawal and
Transfer Form or as otherwise notified in advance to the Holder;
|
|
(b) |
the payment of such fees, taxes, duties, charges and expenses as may be required under this Deposit Agreement;
|
|
(c) |
a legal opinion by U.S. legal advisers reasonably acceptable to Computershare to the effect that such Depositary Receipts and the Company Securities represented thereby
may be transferred, offered and sold pursuant to an effective registration statement filed under the Securities Act or without registration under the Securities Act, and dealing with such other reasonable issues as may be requested by
Computershare; and
|
|
(d) |
such proof, certificates and representations and warranties as to matters of fact, including, without limitation, as to such person’s identity and such further documents
and information as the Depositary may deem reasonably necessary, appropriate or otherwise desirable for the administration or implementation of this Deposit Agreement in accordance with Applicable
Legislation.
|
|
9.2 |
Upon the production of such documentation and the making of such payments in accordance with Section 9.1,
the Depositary will cancel such Depositary Receipts and direct the Custodian to (i) deliver the relevant Deposited Property at or from the applicable location under Section 9.1(a), to the person(s) designated in the accompanying
Depositary Receipt Withdrawal and Transfer Form, and (ii) provide evidence of such cancellation and delivery.
|
|
9.3 |
In respect of such transfer of Deposited Property:
|
|
(a) |
the Depositary shall be entitled to deliver to the transferee (the “
Transferee
”),
in lieu of the relevant Deposited Securities to which he is entitled, any securities into which such Deposited Securities have been converted, sub-divided or consolidated, any securities which are substituted by the Client for such
Deposited Securities or any proceeds and/or securities received or issued in lieu of such Deposited Securities as a result of any corporate event or transaction of or affecting the Client; and
|
|
(b) |
without prejudice to the generality of Section 9.3(a), where the Depositary has at the direction of the Holder assented Deposited Securities to a third party pursuant to
a tender offer, exchange offer or other transaction, the Depositary shall deliver to the Transferee in question the proceeds and/or securities received in respect of the assented Deposited Securities underlying the Depositary Receipts
being withdrawn, in lieu of such Deposited Securities;
|
|
9.4 |
Notwithstanding any other provisions of this Section 9, the Depositary shall not be required to make arrangements for the transfer of Company Securities during any period
when the Share Register or the Depositary Receipt Register is closed, provided that if any such closure is in effect at the time the Holder submits a request for withdrawal of Deposited Securities, the Depositary will promptly notify
the Holder of such closure, and shall execute the transfer request without unreasonable delay after the Depositary Receipt Register re-opens or the Depositary receives notification that the Share Register has re-opened (as the case
may be).
|
|
9.5 |
Deposited Property shall be delivered by the Depositary to any person only under the circumstances expressly contemplated in this Deposit Agreement, and the
Depositary shall not be liable to a Holder or a Transferee if, under the terms hereof, any Deposited Property is not or cannot be delivered to or to
the order of a Transferee.
|
|
9.6 |
The Client shall be liable for any costs (which shall include, but shall not be limited to, notary fees) incurred in carrying out a transfer of Depositary Receipts and
the Client agrees to indemnify the Depositary for any such costs incurred and the Depositary shall not be obliged to effect any transfer unless it has been provided in cleared funds for such costs to its reasonable satisfaction.
|
|
9.7 |
The Depositary shall only be obliged to deliver Company Securities or other Deposited Property to the extent Company Securities or such other Deposited Property are then
held by the Custodian or the Depositary or by their respective agents under this Deposit Agreement.
|
|
9.8 |
Notwithstanding the withdrawal of Deposited Securities under this Section 9, income distributions attributable thereto shall be governed by Section 8.
|
|
9.9 |
All Certificates surrendered to the Depositary shall be cancelled by the Depositary. The Depositary is authorized to destroy Certificates so cancelled in accordance with
its customary practices or Applicable Legislation.
|
10. |
COMPULSORY WITHDRAWAL
|
|
10.1 |
If it shall come to the notice of the Depositary, or if the Depositary shall have reason to believe, that
any Depositary Receipts:
|
|
(a) |
are owned directly or beneficially by any person in circumstances which, in the reasonable opinion of the Depositary, might result in the Depositary or the Custodian
suffering any material losses (including tax losses) for which it is not indemnified under this Deposit Agreement, or pecuniary, fiscal or material regulatory disadvantage or any other material burden or disadvantage which it might
not otherwise have suffered;
|
|
(b) |
are owned directly or beneficially by, or otherwise for the benefit of, any person in breach of any Applicable Legislation or so as to result in ownership of any Company
Securities exceeding any limit under, or otherwise infringing, the Articles of Association of or law applicable to the Client or the terms of issue of Company Securities;
|
|
(c) |
are owned directly or beneficially by, or otherwise for the benefit of, any person who fails to furnish to the Depositary such proof certificates and representations and
warranties as to matters of fact, including, without limitation, as to his identity, as the Depositary may reasonably require for the administration or implementation of this Deposit Agreement in accordance with Applicable
Legislation;
|
|
(d) |
are held by a Holder who has failed to duly and punctually perform any material obligation to the Depositary or a Custodian imposed upon him by virtue of this Deposit
Agreement or any other agreement to which such Holder and the Depositary are parties or any instrument by which such Holder is bound with respect to Depositary Receipts; or
|
|
(e) |
are held on behalf of the Holder representing Company Securities of such value as to require the Depositary or Custodian, under Applicable Legislation, to make a
mandatory offer for other Company Securities,
|
|
10.2 |
If any regulatory authority refuses to approve the holding by the Depositary or the Custodian of Company
Securities at or above a certain level, and requires the Depositary or Custodian to divest itself of some or all of Company Securities held by it, then:
|
|
(a) |
the Depositary will consult with the Client as to what action it proposes to take; and
|
|
(b) |
the Holder will be deemed to have requested the cancellation of its Depositary Receipts and the withdrawal of Company Securities represented by those Depositary Receipts
in excess of that level.
|
|
10.3 |
On the Holder being deemed at the election of the Depositary, to have requested the withdrawal of the
Deposited Securities represented by his Depositary Receipts pursuant to Section 10.2, the Depositary shall make such arrangements to the extent practicable and permitted by Applicable Legislation for the delivery of the Deposited
Property represented by the Holder’s Depositary Receipts to the Holder as the Depositary shall think fit. Without limitation, the Depositary may:
|
|
(a) |
arrange for such Depositary Receipts to be cancelled and for the Deposited Property represented thereby to be transferred to such Holder; or
|
|
(b) |
if transfer to the Holder in accordance with (a) above is not reasonably practicable, in its absolute discretion, liquidate all or part of the Deposited Property and
deliver the net proceeds in respect thereof to the Holder.
|
11 |
FEES AND EXPENSES PAYABLE BY THE HOLDER
|
|
11.1 |
if any fees of any third party, or any costs, taxes, duties or charges shall become payable by or on behalf of the Custodian or the Depositary with respect to any
Depositary Receipts or any part of the Deposited Property, including without limitation the issuance, holding, or transfer thereof, or any income, distribution or capital or other payment arising from any of the foregoing or any
proceeds of the sale thereof, without prejudice of the terms of this Deposit Agreement such fees, taxes, duties or charges shall be paid by the Holder or the Client to the Depositary. The Depositary may refuse to effect any
registration of Depositary Receipts or any withdrawal of the underlying Deposited Securities until such payment is made. The Depositary may also deduct from any income, distributions or capital or other payment on or in respect of,
or arising from, Deposited Securities, or may sell by public or private sale for the account of the Holder thereof all or any part of such Deposited Property,
provided that (i) in the event that any tax or other governmental charge or foreign currency conversion fee is applicable to a cash distribution on the Deposited Securities, the Depositary may deduct the amount
thereof from such distribution if the Holder or the Client has failed to pay such amount within ten (10) Business Days after the Depositary provides reasonable notice to the Holder and the Client of its intent to make such deduction,
and (ii) in the case of any other fees, costs, taxes, duties or charges, the Depositary may deduct the amount thereof or sell Deposited Property if the Holder or the Client has failed to pay such amount within twenty (20) Business
Days after the Depositary provides reasonable notice to the Holder and the Client of its intent to make such deduction or sale, and in any such case the Depositary may apply such deduction or the proceeds of any such sale in payment
of such tax, other governmental charge, foreign currency conversion fee or other fee, cost, tax, duty or charge. Each of the Holder and the Client shall remain liable for any deficiency. Upon any such sale, the Depositary shall, if
appropriate, reduce the number of Depositary Receipts evidenced by any Certificate held by the Holder to reflect any such sale and shall distribute the net proceeds of any such sale or the balance of any such property after deduction
of such tax or other governmental charge to the Holder. If any governmental, regulatory or court consent needs to be obtained prior to the delivery of the Deposited Property or the net proceeds thereof to the Holder, the Depositary
will cooperate with Exxaro and the Client the Depositary need not obtain any such consent and shall make such arrangements with respect to the Deposited Property or the net proceeds thereof as it shall see fit, provided that the
Depositary will provide provide reasonable cooperation to the Client and/or Exxaro, without risk, liability or expense on the part of the Depositary, to the extent the Client and/or Exxaro seek to obtain any such consent.
|
12.
|
INSTRUCTIONS
|
|
12.1 |
The Client and the Holder acknowledge and agree that Computershare shall be entitled without further verification to accept, execute, rely upon or otherwise act upon
instructions or information received from the Client or the Holder (or any person who Computershare reasonably believes is acting on behalf of or is otherwise authorized by the Client or the Holder), including any instructions
delivered by email or other electronic means, notwithstanding that it may afterwards be discovered that any such instruction or information:
|
|
(a) |
was not genuine or was not correct or was forged, not authentic or untrue;
|
|
(b) |
was not sent with the authority of any person on whose behalf it was expressed to have been sent;
|
|
(c) |
was not initiated by the relevant person entitled to give it; or
|
|
(d) |
was in any other way not given in compliance with the requirements of Applicable Legislation.
|
|
(a) |
The Client and each Holder acknowledge and agree that Computershare will not be required to take any further steps to verify the validity of any instruction or other
document or the execution of any document received from or on behalf of the Client or a Holder (whether by comparison of signatures or seals or by requiring certification or otherwise). Nothing in this section or elsewhere in this
Deposit Agreement shall be construed as requiring Computershare to take any action on an oral instruction, which it determines (in its absolute discretion), should be given in writing.
|
|
12.2 |
The Holder shall give instructions to the Depositary in the manner described in this Deposit Agreement and to the coordinates set out in Section 24 hereof, and the
Depositary will not be required to specifically acknowledge such instructions; provided, however, that if the Depositary is unable to process any such instructions it will provide a notice of deficiency and the reason(s) therefor to
the party which issued the instructions.
|
13.
|
INDEMNIFICATION BY THE CLIENT
|
|
13.1 |
Client shall indemnify and hold Computershare and its officers, directors, employees, agents and affiliates harmless from and against, and none of them shall be
responsible for, any and all Losses arising out of or attributable to:
|
|
(a) |
the performance by Computershare, the Custodian or any of their respective officers, directors, employees, agents and affiliates (collectively, the “Indemnified Persons”)
of any obligations under, or any omission by any of them to act in connection with, this Deposit Agreement or this appointment, including without limitation (i) any act relating to Deposited Property held for the account of, or
Depositary Receipts held by, the Holder, and (ii) any Loss arising out of or attributable to a breach by the Holder or the Client of any of the representations or warranties made or deemed to be made by it in connection with its
deposit of Company Securities hereunder, together with the reasonable costs and expenses of defending itself against any Loss or enforcing this Deposit Agreement, except for any liability of Computershare as set forth in Section 15.2
below;
|
|
(b) |
any liability of Computershare to pay UK stamp duty reserve tax or UK stamp duty (including any interest and/or penalties thereon) resulting from or arising in respect of
or otherwise in connection with: (i) the issue by Computershare of Depositary Receipts in respect of Deposited Securities, (ii) the transfer or issue of Company Securities to Computershare or its nominee, (iii) any transactions
entered into by the Client affecting the Deposited Securities following such issue under, or in connection with, this Deposit Agreement, (iv) the transfer of Depositary Receipts by the Holder or (v) the cancellation of Depositary
Receipts and the transfer by Computershare of Deposited Securities to Cede & Co. as nominee for DTC or other clearance service under, or in connection with, this Deposit Agreement;
provided
that the indemnity in this Section 13.1(b) shall not apply to the extent any liability arises as a result of unreasonable delay or default on the part of Computershare or the Custodian in
paying to HMRC any funds received from the Client or the Holder for the purpose of paying any UK stamp duty or UK stamp duty reserve tax;
provided
,
further
, that no such delay or default shall be deemed to occur as a result of a failure to pay any such tax by the due date on which the tax is payable to HMRC
to the extent Computershare has not received cleared funds from the Client or Holder (as the case may be) in the full amount of such stamp duty and/or stamp duty reserve tax no later than the fifth Business Day prior to the applicable
due date;
|
|
(c) |
any Loss arising out of or attributable to acts performed or omitted by the Client or any of its officers, directors, employees, agents and affiliates in connection with
this Deposit Agreement or the breach hereof;
|
|
(d) |
any liability or expense which may arise out of any misstatement or alleged misstatement or omission or alleged omission in any registration statement, proxy statement,
prospectus (or placement memorandum), preliminary prospectus (or preliminary placement memorandum) or other offering document relating to the offer or sale of Depositary Receipts, except to the extent any such liability or expense
arises out of (i) information relating to the Depositary or its agents (other than the Client), as applicable, furnished in writing by the Depositary and not changed or altered by the Client expressly for use in any of the foregoing
documents or (ii) if such information is provided, the failure to state a material fact necessary to make the information provided not misleading; and
|
|
(e) |
all costs and expenses reasonably incurred or paid by Computershare in connection with any matter for which a claim may be made by Computershare under this section which
results in any indemnification being paid to an Indemnified Person.
|
|
13.2 |
Amounts which are required to be paid by the Client to Computershare:
|
|
(a) |
in respect of Section 13.1(b), shall be paid in cleared funds on or before the date which is the later of (i) five Business Days after written demand is received by the
Client from Computershare and (ii) the fifth Business Day prior to the date on which the tax in question is payable to HMRC; or
|
|
(b) |
in respect of Section 13.1 (a) and Sections 13.1 (c) to (e) (inclusive), shall be paid on demand save that where a good faith dispute arises in relation to the amount
due, the amount in dispute need not be paid until resolution of such dispute.
|
|
13.3 |
The indemnity in Section 13.1 shall not include:
|
|
|
(a) any stamp duty or stamp duty reserve tax payable as a consequence of the representations, warranties and undertakings in Section 4.10 being breached, or as a
consequence of any of the matters represented and warranted in Section 4.10 not being correct on the date of this Deposit Agreement or ceasing to be correct after the date of this Deposit Agreement other than as a result of changes in
Applicable Legislation, in each case in relation to the Depositary or Custodian; or
|
|
|
(b) Excluded Taxes.
|
|
13.4 |
The Client shall ensure, to the extent within its control, that neither the Client nor any relevant member of the Client’s group holding the Depositary Receipts will
under any circumstance make any claim, bring any action or commence any legal proceedings against Computershare under, or in connection with, this Deposit Agreement if or to the extent that any such claim, action or proceedings could
not be brought subject to the limitations set forth in Sections 15.2 and 13.5 of this Deposit Agreement;
|
|
13.5 |
Notwithstanding anything herein to the contrary, Computershare shall on no account be liable to the Client in respect of any claim under this Deposit Agreement, unless
written notice of the claim has been given to Computershare by or on behalf of the Client (as the case may be) on or before the date which is twelve months after the date on which the Client became aware of the specific act, fact,
circumstance or event which gave rise to the claim, or if earlier, the date on which it ought reasonably (having regard to all the circumstances) to have become so aware. The Client acknowledges and agrees that Computershare will be
materially prejudiced by any failure by the Client to provide notice on a timely basis in accordance with this Section 13.5.
|
|
13.6 |
If any action or claim is brought against any party entitled to indemnification hereunder (the “
Indemnified Party
”) in respect of which such Indemnified Party seeks an indemnity from
the Client under this Section 13 (the Client being the “
Indemnifying Party
”)
under the provisions of this Deposit Agreement, the Indemnified Party shall, as soon as reasonably practicable, notify the Indemnifying Party in writing of such action or claim
(
provided that the failure to make such notification shall not affect such Indemnified Party’s rights to indemnification except to the extent the
Indemnifying Party is materially prejudiced by such failure) and the Indemnifying Party shall be entitled to assume the defense of such action or claim. All costs, charges, reasonable fees and expenses in respect of such action or
claim (whether or not the Indemnifying Party assumes control of the defense) shall be borne by the Indemnifying Party and, to the extent incurred by the Indemnified Party, shall be reimbursed by the Indemnifying Party to the
Indemnified Party on demand.
|
|
13.7 |
If a payment is made by the Client to an Indemnified Party (i) in respect of stamp duty and/or stamp duty reserve tax, or (ii) pursuant to Section 5.6 in respect of Taxes
due on fees or other sums paid by the Client or (iii) pursuant to Section 5.7 in respect of Transaction Taxes, or (iv) pursuant to Section 13.1 in respect of any Taxes of the type described in clauses (i) through (iii) of this Section
13.7, and in any such case the Indemnified Party subsequently obtains a total or partial refund of the relevant Taxes from a Tax Authority, the Indemnified Party shall, as soon as reasonably practicable, give notice of this fact to
the Client and reimburse to the Client the amount of the refund actually received by the Indemnified Party from the Tax Authority, after deduction of all fees, costs and expenses incurred by the Indemnified Party in connection with
obtaining such refund; provided, however, that nothing in this Section 13.7 shall cause any Indemnified Party to be subject to any obligation whatsoever to apply for or otherwise seek or obtain a refund of any Taxes; provided,
further, that if an Indemnified Party elects to apply for or otherwise seek such a refund, it shall first be entitled to indemnification to its reasonable satisfaction by the Client for any costs, liabilities and expenses.
|
|
13.8 |
The obligations set forth in this Section 13 shall survive the termination of this Deposit Agreement and the succession or substitution of any indemnified person.
|
14. |
[INTENTIONALLY OMITTED]
|
15. |
LIMITATION OF LIABILITY
|
|
15.1 |
Notwithstanding any other provision of this Deposit Agreement or the Depositary Receipts to the contrary, neither the Depositary, the Custodian, nor any of their
respective agents shall be liable to the Client, the Holder or beneficial owners of interests in Depositary Receipts for any incidental, indirect, special, punitive or consequential damages (including, without limitation, legal fees
and expenses) of any nature whatsoever, including but not limited to lost profits, in each case of any form incurred by any person or entity, whether or not foreseeable and regardless of the type of action in which such a claim may be
brought, even if apprised of the possibility of such damages.
|
15.2 |
In addition to the limitation of liability set out in Section 1.8,
the Depositary shall not incur any
liability to the Client, the Holder, or any other person for any Losses suffered or incurred by the Client, the Holder or other person arising out of or in connection with the performance or non-performance of the Depositary’s
obligations or duties arising under any provisions of this Deposit Agreement, or otherwise, except to the extent that such Losses are determined by a court of competent jurisdiction to have directly resulted from the Depositary’s
negligence, willful misconduct or fraud, in which case the combined maximum liability of the Depositary to the Holder and the Client, shall not exceed the amounts paid hereunder by Client to Computershare as fees and charges, but
not including reimbursable expenses, during the thirty six (36) months immediately preceding the event, act or omission for which recovery from Computershare is being sought. Except to the extent expressly provided in the preceding
sentence, (i) each of the Client and the Holder releases the Depositary from any and all liability in connection with or arising out of this Deposit Agreement or the transactions contemplated hereby and (ii) the Client and the
Holder agree that they will not under any circumstance make any claim, bring any action or commence any legal proceedings against the Depositary under, or in connection with, this Deposit Agreement. The Depositary shall not incur
any liability as a result of any act or omission to act on the part of any Custodian unless the Custodian has committed negligence, fraud or willful misconduct in the provision of custodian services to the Depositary.
|
15.3 |
Subject to the provisions of this Deposit Agreement, the Depositary and its agents shall not incur any liability to the Client, any Holder or to any other person if, by
reason of:
|
|
(a) |
any provision of any present or future law, rule, regulation, fiat, order or decree of the United States, the United Kingdom or any other country or jurisdiction or of
any governmental or regulatory authority or any securities exchange or market or automated quotation system, or by reason of the interpretation thereof by a governmental or regulatory authority or any securities exchange or market or
automated quotation system;
|
|
(b) |
the Articles of Association or the provisions of or governing the Company Securities;
|
|
(c) |
any act or omission of the Client in contravention of this Deposit Agreement;
|
|
(d) |
any computer failure or breakdown outside the direct and immediate control of the Depositary; or
|
|
(e) |
any act of God, war, terrorism, nationalization, expropriation, currency restrictions, work stoppage, strike, lockout, riot, civil unrest, revolutions, rebellions,
explosions, epidemics, governmental regulations, communication line failures, power failure, earthquake or other disaster or any circumstance beyond the direct and immediate control of the Depositary,
|
15.4 |
If and to the extent that by virtue of laws of any jurisdiction outside England and Wales, or the application or operation of those laws in any particular event or
circumstance, or by virtue of the provisions of the Articles of Association or the application or operation of those provisions in any particular event or circumstance, the Depositary or the Custodian does not acquire unconditional
and absolute title or right to any Deposited Property, or acquires a title or right to any Deposited Property which is in any manner encumbered or defective or liable to be displaced or avoided, or where as a result of an event or
circumstance beyond the Depositary’s reasonable control the Deposited Property is reduced or depleted or the Depositary does not hold sufficient Company Securities to cover Depositary Receipts in issue, neither the Depositary nor the
Custodian shall be in any way liable to the Client or to any Holder or any other person by reason thereof; but in any such case the Depositary shall be entitled to take or cause to be taken such action as shall in its opinion be
reasonable or appropriate, including without limitation the cancellation without compensation of Depositary Receipts of any Holder(s) determined by the Depositary whether or not such Holder(s) are in any way responsible for the
relevant event or circumstance, provided that the Depositary shall promptly notify the Holder following any such cancellation; and each Holder agrees that, by acquiring and holding Depositary Receipts representing Company Securities
by means of the arrangements contemplated by this Deposit Agreement, such Holder accepts the risk that by virtue of such laws or terms and conditions, or the application or operation thereof or any such event or circumstance the
interest in any relevant Deposited Property may not be entire, complete and unimpeachable.
|
|
15.5 |
If the Depositary becomes entitled to take or cause to be taken action in accordance with Section 15.4 above, it will in its sole discretion consider whether it may
directly or indirectly transfer or make available to any Holder adversely affected, in whole or in part, the benefit of any rights, claims or other assets which may be available to the Depositary and which pertain to the matter(s)
giving rise to the relevant event or circumstance.
|
|
15.6 |
The Depositary may rely on, and shall not be liable for any Loss suffered by any Holder or any other person by reason of its having accepted (or the Custodian or the
Client or its agents having accepted) as valid and having relied upon any written notice, request, direction, transfer, certificate for Company Securities (or other securities), electronic communication or any other document or any
translation thereof or communication reasonably believed by it in good faith to be genuine notwithstanding that the same shall have been forged or shall not be genuine or accurate or shall not have been duly authorized or delivered.
|
|
15.7 |
The Depositary may act, or take no action, on the advice or opinion of, or in reliance upon, any advice, opinion, certificate or information obtained from, the Client or
any reputable lawyer, valuer, accountant, banker, broker, information provider, settlement system operator, registrar or other expert whether obtained by the Client, the Depositary or otherwise, or any person presenting Company
Securities for deposit, the Holder, or any other person, believed by the Depositary in good faith to be competent to give such advice, opinion, certificate or information, and shall not except where any such person is a member of the
same group of companies as the Depositary be responsible or liable to any Holder or any other person for any Losses occasioned by so acting or refraining from acting or relying on information from persons depositing Company Securities
or otherwise entitled to the issue of Depositary Receipts. Any such advice, opinion, certificate or information may be sent or obtained by letter, telex, facsimile transmission, e-mail, or other electronic communication and the
Depositary shall not be liable for acting on any such advice, opinion, certificate or information notwithstanding that the same shall have been forged or shall not be genuine or accurate.
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|
15.8 |
The Depositary may call for and shall be permitted to accept as sufficient evidence of any fact or matter or the expediency of any transaction or thing a certificate,
letter or other written communication, purporting to be signed on behalf of the Client by a director of the Client or by a person duly authorized in writing by a director of the Client or such other certificate from any such person as
is specified in Section 15.7 above which the Depositary reasonably considers appropriate and the Depositary shall not be bound in any such case to call for further evidence or be responsible to any Holder or any other person for any
Loss or Liability that may be occasioned by the Depositary acting on such certificate, except to the extent that the Depositary commits willful misconduct or fraud in carrying out such actions.
|
|
15.9 |
The Depositary shall not be required or obliged to monitor, supervise or enforce the observance and performance by the Client of any of its obligations, including,
without limitation, those arising under or in connection with Applicable Legislation, or any contract or instrument to which the Client is a party or by which it or any of its assets is bound. The Depositary makes no representation
or recommendation to any person regarding the financial condition of the Client or the advisability of acquiring Depositary Receipts or Company Securities or other property or as to the type or character or suitability thereof and
takes no responsibility for the operations of the Client or the effect thereof on the value of the relevant Company Securities or Depositary Receipts or any rights derived therefrom.
|
15.10 |
The Depositary and the Custodian may engage or be interested in any financial or other business transactions with the Client or any other member of any group of which the
Client is a member or in relation to the Deposited Property (including, without prejudice to the generality of the foregoing, the conversion of any part of the Deposited Property from one currency to another), may at any time acquire,
hold, be interested in or deal with Company Securities and/or Depositary Receipts for their own account or for the account of any other person and shall be entitled to charge and be paid all usual fees, commissions and other charges
for business transacted and acts done by them otherwise than in the capacity of Depositary or Custodian (as the case may be) in relation to matters arising under this Deposit Agreement (including, without prejudice to the generality
of the foregoing, charges on the conversion of any part of the Deposited Property from one currency to another and on any sales of property) without accounting to the Holder or any other person for any profit arising therefrom.
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|
15.11 |
The Depositary shall use commercially reasonable efforts to effect any sale of securities or other property
or transferable right and any conversion of currency as is referred to or contemplated by this Deposit Agreement in accordance with its normal practices and procedures and subject to the terms of this Deposit Agreement but shall
have no liability with respect to the financial or other terms of such sale or conversion,
the timing thereof, or any delay in action or omission to act, or for
any error or delay in action, omission to act, default or negligence on the part of the party retained in connection with any such sale or conversion, or if the effecting of such sale or conversion shall not be reasonably
practicable.
|
|
15.12 |
The Depositary shall have no responsibility whatsoever to any Holder or any other person as regards any deficiency which might arise because the Depositary is subject to
or accountable for any tax in respect of any or any part of the Deposited Property or any income, distribution or capital or other payment arising therefrom or any proceeds of sale thereof.
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|
15.13 |
Without prejudice to any other powers which the Depositary may have hereunder, the Depositary shall be entitled to enter into any agreement with or give any undertakings
required by law to any relevant taxation authority concerning the taxation status of the transactions effected pursuant to this Deposit Agreement and to do all such things as may be reasonably required under the terms of any such
agreement or undertakings. After entering into any such agreement or undertaking, the Depositary will, to the extent it is not prohibited from doing so under Applicable Legislation or the terms of such agreement or undertaking,
provide a copy thereof to the Client in connection with any claim for indemnification brought against the Client under this Deposit Agreement.
|
|
15.14 |
No provision of this Deposit Agreement shall require the Depositary to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties or in the exercise of any of its rights or powers hereunder, except to the extent a liability arises directly from the Depositary’s negligence, willful
misconduct or fraud. If, notwithstanding this provision, the Depositary reasonably does so, it shall be entitled to make such deductions from the Deposited Property or any income, distribution or capital arising therefrom or to
sell all or any of the Deposited Property and make such deductions from the proceeds of sale thereof as may be required to account for any loss, expenditure or liability suffered by the Depositary in respect thereof,
provided that the Holder or the Client has failed to reimburse the Depositary for
such loss, expenditure or liability within the applicable period specified in Section 11.1 of this Deposit Agreement.
|
|
15.15 |
All communications, notices, certificates, documents of title and remittances to be delivered by or sent to or from the Holder or its agents will be delivered to or sent
to or from them at their own risk.
|
|
15.16 |
The Depositary and its agents shall incur no liability (a) by reason of any exercise or failure to exercise any discretion given it in this Deposit Agreement; or (b) for
the acts or omissions made by, or the insolvency of, any securities depository, clearing agency or settlement system. The Depositary shall be under no obligation to inform the Holder or any other holders of an interest in any
Depositary Receipts about the requirements of Applicable Legislation or any changes therein or thereto. The Depositary and its agents will not be responsible for any failure to carry out any instructions to vote any of the Deposited
Securities unless such failure arises from the Depositary’s criminal fraud, negligence or willful misconduct, or for the manner in which any such vote is cast or for the effect of any such vote. The Depositary may rely upon
instructions from the Client or its counsel in respect of any approval or license required for any currency conversion, transfer or distribution. Notwithstanding anything to the contrary set forth in this Deposit Agreement, the
Depositary and its agents may fully respond to any and all demands or requests for information maintained by or on its behalf in connection with this Deposit Agreement, the Holder, any Depositary Receipt or Depositary Receipts or
otherwise related hereto or thereto to the extent such information is requested or required by or pursuant to any lawful authority, including without limitation Applicable Legislation, administrative or judicial process, banking,
securities or other regulators. The Depositary shall not incur any liability for any tax consequences that may be incurred by the Holder on account of its ownership of the Depositary Receipts. The Depositary shall not incur any
liability for the content of any information submitted to it by or on behalf of the Client for distribution to the Holder or for any inaccuracy of any translation thereof, for the content of any information from the Client and (to the
extent the Client has appointed one) the Share Registrar relating to cash distributions, corporate actions, forthcoming meetings of the holders of those securities and other matters having a bearing on the rights of persons holding
Depositary Receipts representing Company Securities, or for the time at which any such information is available or the timing of the delivery of such information to the Depositary, the Custodian or its nominee. The Depositary shall
not incur any liability for any investment risk associated with acquiring an interest in the Deposited Securities, for the validity or worth of the Deposited Securities, for the credit-worthiness of any third party, for allowing any
rights to lapse upon the terms of this Deposit Agreement, or for the failure or timeliness of any notice from the Client. The Depositary shall not be liable for any acts or omissions made by a successor depositary whether in
connection with a previous act or omission of the Depositary or in connection with any matter arising wholly after the removal or resignation of the Depositary.
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|
15.17 |
Subject to the prior written approval of the Client, which shall not be unreasonably withheld or delayed, the Depositary may consult with foreign counsel, at the Client’s
expense, to resolve any foreign law issues that may arise as a result of the Client, any Holder or any other party being subject to the laws or regulations of any foreign jurisdiction; provided that if the Client does not grant such
approval, the Depositary will not be liable to the Client, the Holder or any other person by reason of the applicability or effect of any such foreign laws or regulations to any party.
|
|
15.18 |
The Depositary, Custodian or any affiliated companies or associates of each may act as agent for, provide banking, depository, custodian and other services to, and
generally engage in any kind of business with, others (including without limitation issuers of securities, money market instruments or other property purchased for and on behalf of the Depositary) to the same extent as if the
Depositary and/or Custodian were not a party to these arrangements. Nothing in this Deposit Agreement shall be deemed to restrict the right of the Depositary, the Custodian or the affiliated companies or associates of each to perform
such services for any other person or entity; the performance of such services for others and the receipt of any fees, or other compensation in relation to such service, business or activity will not be deemed to violate the terms of
this Deposit Agreement or give rise to any duty or obligation not specifically undertaken by the Depositary or Custodian under this Deposit Agreement;
|
|
15.19 |
The Depositary shall not be under any duty to bring legal proceedings against the Client on behalf of a Holder, and shall have no obligation to appear in, prosecute or
defend any other action, suit or other proceeding in respect of any Deposited Securities or the Depositary Receipts; and if the Depositary agrees to so act, it shall do so only if fully indemnified by the Holder or the Client.
|
16.
|
CUSTODIAN; AGENTS OF THE DEPOSITARY
|
|
16.1 |
The Depositary shall appoint the Custodian for the purpose of providing the Custody Services on the Effective Date. The Custodian shall be an Affiliate of the Depositary
and shall be subject at all times and in all respects to the direction of the Depositary and shall be responsible solely to it. The Depositary reserves the right to replace or remove the Custodian and to appoint additional custodians
upon reasonable advance notice to the Client and Exxaro, provided that any additional or replacement custodian shall deliver the confirmation set out in Section 4.10 to the Client and Exxaro prior to the effective date of such
custodian’s appointment; provided, further, that the appointment of an additional or replacement custodian shall require the prior written approval of Exxaro and the Client, which consent shall not be unreasonably withheld or delayed
by Exxaro or the Client.
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|
16.2 |
All funds received by Depositary hereunder on behalf of Holders or the Client (“
Funds
”)
may be held by the Depositary or one or more agents of the Depositary (which agents may be affiliates of the Depositary, including the Custodian) for the benefit of the Holders or the Client (as applicable) and deposited in one or
more bank accounts to be maintained by the Depositary or the Custodian in its name, which account(s) may be unsegregated. Until paid or distributed pursuant to this Deposit Agreement, the Depositary may hold or invest the Funds
through such accounts in: (a) obligations of, or guaranteed by, the United States of America; (b) commercial paper obligations rated A-1 or P-1 or better by Standard & Poor’s Corporation (“
S&P
”) or Moody’s Investors Service, Inc. (“
Moody’s
”), respectively; (c) AAA
rated money market funds that comply with Rule 2a-7 of the Investment Company Act of 1940; or (d) demand deposit accounts, short term certificates of deposit, bank repurchase agreements or bankers’ acceptances, of commercial banks
with Tier 1 capital exceeding $1 billion or with an average rating above investment grade by S&P (LT Local Issuer Credit Rating), Moody’s (Long Term Rating) and Fitch Ratings, Inc. (LT Issuer Default Rating) (each as reported by
Bloomberg Finance L.P.). The Depositary, the Custodian and their respective agents shall have no responsibility or liability for any diminution of the Funds that may result from any deposit or investment made by the Depositary or its
agent(s) in accordance with this paragraph, including any losses resulting from a default by any bank, financial institution or other third party. The Depositary or its agent(s) may from time to time receive interest, dividends or
other earnings in connection with such deposits or investments, all of which shall be solely for the account of the Depositary. Neither the Depositary, the Custodian nor any other agent of the Depositary shall be obligated to pay
such interest, dividends or earnings to Client, any Holder or any other party. The Depositary and the Custodian may, directly or through one or more agents, hold Holders’ money entitlements in bank accounts, pursuant to this Section
16.2, on a pooled basis pending distribution and the relevant bank may be entitled to combine funds held in a bank account with any other account of the Depositary or the Custodian or their respective agents.
|
16.3 |
The Depositary may perform its obligations under this Deposit Agreement through any agent appointed by it and, provided the Depositary has acted in good faith in the
appointment or continued use of such agent, it shall not incur any liability as a result of any act or omission to act on the part of any agent unless such liability is caused by or results from the agent’s willful misconduct, fraud
or negligence in the provision of services to the Depositary.
|
17.
|
RESIGNATION OF THE DEPOSITARY
|
|
17.1 |
The Client may remove the Depositary at any time on 60 days’ prior written notice.
|
|
17.2 |
The Depositary may resign as Depositary:
|
|
(a) |
by giving at least 120 days’ prior notice in writing to that effect to the Holders and the Client; or
|
|
(b) |
on the termination of this Deposit Agreement.
|
17.3 |
Upon the Client’s delivery of a notice of removal pursuant to Section 17.1, or
upon the Depositary’s delivery of a notice of resignation pursuant to sub-paragraph (a) of Section 17.2, the Client shall promptly appoint a successor depositary (the “
Successor Depositary
”). In the event of a resignation of the Depositary, the Depositary undertakes to provide reasonable cooperation and assistance to the Client in connection with the Client’s efforts to
appoint a Successor Depositary whose business is or includes issuing “depositary receipts” for “relevant securities” (within the meaning of section 69 of the Finance Act) and “depositary receipts” for “chargeable securities” (within
the meaning of sections 94 and 99 of the Finance Act) for the purposes of sections 67(6), 93(2) and 97B of the Finance Act, which undertaking will have effect following the giving of notice of resignation. The resignation of the
Depositary under sub-paragraph (a) of Section 17.2 shall take effect on the date specified in such notice or, if sooner, upon the appointment of a Successor Depositary. The resignation of the Depositary under sub-paragraph (b) of
Section 17.2 shall take effect on the effective date of the termination of this Deposit Agreement. Upon any appointment and acceptance of a Successor Depositary, notice thereof shall be given by or for the Client to the Holders as
soon as reasonably practicable.
|
|
17.4 |
Upon the resignation or removal of the Depositary (referred to as the “
Retiring
Depositary
”) and against payment of all sums due to the Retiring Depositary under this Deposit Agreement, the Retiring Depositary shall deliver to the Successor Depositary, sufficient information and records to enable the
Successor Depositary efficiently to perform its obligations under this Deposit Agreement and shall transfer to the Successor Depositary or to a custodian all Deposited Property held by the Retiring Depositary hereunder. Upon the date
when such resignation takes effect, any Custodian appointed by the Retiring Depositary shall be instructed by the Retiring Depositary to transfer to the Successor Depositary or to a custodian appointed by the Successor Depositary the
Deposited Property held by it pursuant to this Deposit Agreement.
|
18.
|
TERMINATION
|
|
18.1 |
This Deposit Agreement may be terminated:
|
|
(a) |
by either the Client and the Holder (acting jointly) on the one hand, by notice in writing to Computershare or Computershare, on the other hand, by notice in writing to
the Client and the Holder if, (i) in respect of a termination by Computershare, the Client, and (ii) in respect of a termination by the Client and the Holder, Computershare:
|
|
(i) |
shall be in material breach of any term of this Deposit Agreement and shall not have remedied such breach (if capable of being remedied) within sixty (60) days of
receiving notice of such breach and a request for such remedy;
|
|
(ii) |
goes into insolvency or liquidation (not being a members’ voluntary winding up) or administration or a receiver is appointed over any part of its undertaking or assets
provided that any arrangement, appointment or order in relation to such insolvency or liquidation, administration or receivership is not stayed, revoked, withdrawn or rescinded (as the case may be), within the period of 30 days,
immediately following the first day of such insolvency or liquidation; or
|
|
(iii) |
shall cease to have the appropriate authorizations, which permit it lawfully to perform its obligations envisaged by this Deposit Agreement at any time.
|
|
(b) |
by Computershare: (i) at any time in which it ceases to act as transfer agent for the Company Securities; or (ii) if the Client undertakes a corporate action relating to
or affecting the share capital of the Client and relating to the Deposited Securities and provides notice of the corporate action to Computershare in accordance with Section 4.5(a) of this Deposit Agreement and Computershare, acting
reasonably, considers that (x) such corporate action will, or is likely to, materially adversely affect its legal, tax or regulatory position or (y) one or more of the conditions set by Computershare pursuant to Section 4.5(b) hereof
has not been met; or (iii) immediately, in Computershare’s sole and absolute discretion, if Computershare shall not have received on or prior to the Closing Date an executed copy of each Legal Opinion and the Australian Reliance
Letter, each of which shall conform to the requirements set out in this Deposit Agreement. For the avoidance of doubt, in the event this Deposit Agreement is terminated by Computershare pursuant to clause (iii) of this Section
18.1(b), this Deposit Agreement will be deemed null and void
ab initio
, and no party hereto will have acquired any rights or incurred any
duties or obligations hereunder,
|
|
(c) |
by either the Client or Computershare by notice in writing to the other party if there shall be no Depositary Receipts outstanding.
|
|
18.2 |
In addition, Computershare may terminate this Deposit Agreement
by giving 120 days’ prior notice to
that effect to the Client and the Holder.
|
|
18.3 |
Any termination of this Deposit Agreement shall be without prejudice to any other rights or remedies a party may be entitled to under this Deposit Agreement or at law and
shall not affect any accrued rights or liabilities of any of the Parties nor the coming into or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such
termination.
|
|
18.4 |
All provisions regarding indemnification, taxes, warranty, liability and limits thereon, the scope of the Depositary’s duties and/or obligations and limitations thereon,
compensation and expenses, confidentiality and protection of proprietary rights and trade secrets, termination of this Deposit Agreement and the consequences thereof, and governing law and submission to jurisdiction, shall survive the
termination or expiration of this Deposit Agreement.
|
19.
|
CONSEQUENCES OF TERMINATION
|
|
19.1 |
Upon the termination of this Deposit Agreement if any amount is payable by the Client to Computershare, the Client shall pay such amount in accordance with the terms of
this Deposit Agreement.
|
|
19.2 |
If any Depositary Receipts remain outstanding after the date of termination of this Deposit Agreement or of the Depositary Receipts or any series thereof, the Depositary
shall as soon as reasonably practicable:
|
|
(a) |
deliver the Deposited Property then held by it under this Deposit Agreement in respect of the Depositary Receipts (or the applicable series of Depositary Receipts) to the
Holder, subject to the Holder’s surrender of its Depositary Receipts for cancellation and compliance with the requirements of this Deposit Agreement; or at its discretion
|
|
(b) |
after one hundred twenty (120) days from the date of termination of this Deposit Agreement, if delivery to the Holder in accordance with (a) above is not reasonably
practicable sell all or part of the Deposited Property; and
|
|
(c) |
after the date of termination, the Depositary shall not pass on dividends or distributions or take any other action in respect of such Deposited Property, except that it
shall hold the net proceeds of any such sale, after deducting any sums then due to the Depositary (excluding any sums owed by the Client), together with any other cash then held by it under this Deposit Agreement, without liability
for interest, for the pro rata benefit of Holders who have not theretofore surrendered their Depositary Receipts. After any sale in accordance with this Section 19.2, the Depositary shall be discharged from all obligations under this
Deposit Agreement and the Depositary Receipts, except its obligation to account to the Holders for such net proceeds and other cash comprising the Deposited Property without interest. For the avoidance of doubt, any obligations of the
Client or a Holder to make payments to the Depositary shall survive any termination of this Deposit Agreement or the Depositary Receipts.
|
|
19.3 |
Upon the later of (i) the termination of this Deposit Agreement or (ii) the date of the resignation of Computershare as depositary pursuant to Section 17, Computershare
shall, at the cost of the Client, deliver to the Client (or as it may reasonably direct), all documents, papers and other records relating to the Depositary Receipt Register in its possession which are the property of the Client but,
for the avoidance of doubt, Computershare shall be entitled to retain copies for the purposes of compliance with applicable regulatory reporting requirements and internal recordkeeping procedures.
|
|
19.4 |
Subject to Section 19.5, should this Deposit Agreement be terminated for any reason where the Client has nominated any Successor Depositary to hold the Deposited
Securities, Computershare shall, on the request of the Client, resign in favor of such Successor Depositary in accordance with the terms of this Deposit Agreement within 21 days of the termination of this Deposit Agreement.
|
|
19.5 |
Other than arising from Computershare’s negligence, wilful misconduct or fraud, the Client shall, within 30 days’ of termination or resignation, pay to Computershare,
Computershare’s reasonable costs and expenses, including but not limited to reasonable legal fees, properly incurred as a result of any action taken by Computershare under Section 19.1 or 19.4, or as a consequence of such action.
|
20 |
AMENDMENT
|
|
20.1 |
All and any of the provisions of this Deposit Agreement may at any time and from time to time be amended or
supplemented by written agreement of the Depositary, the Client and Exxaro.
|
|
20.2 |
Notwithstanding Section 20.1, (i) any amendment or supplement which pertains to the indemnification by the Client pursuant to Section 13 or the Fees, or which provides
for additional obligations to be performed or undertaken by the Client, shall become effective without the consent of the Holder upon the mutual agreement of the Depositary and the Client and delivery of a notice of such amendment to
the Holder and (ii) in circumstances where an amendment or supplement is required for compliance with any Applicable Legislation, the Depositary may amend or supplement this Deposit Agreement as necessary to ensure compliance with
such Applicable Legislation. Such amendment or supplement to this Deposit Agreement pursuant to clause (ii) shall not require the consent of the Client or the Holder and may become effective before a notice of such amendment or
supplement is given to the Client and the Holder or within any other period of time as required for compliance, provided that notice shall be given by or for the Depositary to the Client and the Holder as soon as practicable after the
Depositary is made aware that such amendment or supplement is required.
|
|
20.3 |
The
Depositary shall not be obliged to have regard to the consequences for the Holders of any
proposed amendment or supplement to this Deposit Agreement or the exercise of any power conferred on the Depositary by this Deposit Agreement except to the extent expressly provided in this Deposit Agreement.
|
21 |
FURTHER ACKNOWLEDGMENTS
|
22
|
DISCLOSURE OF OWNERSHIP
|
|
22.1 |
The Depositary may from time to time require from the Holder, including in its capacity as a former or
prospective Holder:
|
|
(a) |
information as to the capacity in which such Holder owns or owned Depositary Receipts and regarding the identity of any other persons then or previously interested in
such Depositary Receipts and the nature of such interests; and
|
|
(b) |
evidence or declaration of nationality or residence of the legal or beneficial owner(s) of Depositary Receipts registered or to be registered in its name and such
information as is required for the transfer of the relevant Company Securities to the Holder,
|
|
22.2 |
To the extent that provisions of or governing any Company Securities, the Articles of Association or Applicable Legislation may require the disclosure to the Client of,
or limitations in relation to, beneficial or other ownership of Company Securities or other securities, the Holders of Depositary Receipts shall comply with the Client’s instructions in respect of such disclosure or limitation, as may
be forwarded to them from time to time. Holders shall comply with all such disclosure requirements of the Client from time to time and hereby authorize the Depositary to make any such required disclosures although the Depositary is
not under any obligation to make any such required disclosures on behalf of the Holders.
|
|
22.3 |
The Depositary and the Custodian may disclose information concerning the Holders, the Client, Company Securities and (if different) the Deposited Property, to its
affiliated companies and associates and to sub-custodians and other third party providers of services as may be necessary in connection with its performance of the arrangements described in this Deposit Agreement (including, without
limitation, the respective lawyers and accountants for the Depositary and the Custodian).
|
|
22.4 |
Nothing in this Deposit Agreement shall require the Depositary or the Custodian to disclose sensitive information to a Holder, and neither the Depositary nor the
Custodian shall be liable to any Holder in respect of Losses incurred in connection with any failure to disclose sensitive information. For the purpose of this Section 22.4, sensitive information shall mean any information:
|
|
(A) |
that the Depositary or the Custodian receives from the Client (or any person acting on the Client’s behalf) under any obligation of confidence; or
|
|
(B) |
the disclosure of which in the Depositary’s or the Custodian’s reasonable opinion might amount to a breach of Applicable Legislation or the rules of any market on which
Company Securities are listed or traded.
|
23.
|
AGREEMENT NOT EXCLUSIVE
|
24.
|
NOTICES
|
|
If
to Client:
|
Tronox Holdings Plc
|
|
3rd Floor, 25 Bury Street,
|
|
London, SW1Y 2AL
|
|
Attn: General Counsel
|
|
If to Computershare:
|
Computershare Trust Company, N.A.
|
|
250 Royall Street
|
|
Canton, MA 02021
|
|
Attn: General Counsel
|
|
If
to Exxaro:
|
Exxaro Resources Limited
|
|
Roger Dyason Road
|
|
Pretoria West, 0183, South Africa
|
|
Attn: Riaan Koppeschaar
|
25. |
COPIES OF DEPOSIT AGREEMENT
|
|
A Holder shall be entitled to one copy of this Deposit Agreement upon payment of a reasonable copying charge upon written request made to the Depositary.
|
26.
|
FORCE MAJEURE
|
|
26.1 |
Neither the Depositary, the Client nor Exxaro shall be responsible to the other or to the Holders for delays or failure to perform any of its obligations under the terms
of this Deposit Agreement resulting from acts beyond the reasonable control of such party. Such acts shall include, but not be limited to, acts of God, terrorism, nationalization, expropriation, currency restrictions, work stoppage,
strikes, lockout, riots, acts of war, civil unrest, revolutions, rebellions, explosions, epidemics, governmental regulations, communication line failures, power failure, earthquakes or other disasters, or any failure or breakdown of
any computer facilities.
|
27.
|
ASSIGNMENT
|
|
27.1 |
Computershare may not assign this Deposit Agreement or any rights, benefits or, subject to the Depositary’s rights to appoint agents hereunder, obligations under the
terms of this Deposit Agreement without the prior written consent of the Client or Exxaro.
|
|
27.2 |
Neither the Client nor Exxaro may assign this Deposit Agreement or any rights, benefits or obligations under the terms of this Deposit Agreement without the prior written
consent of the other Parties hereto.
|
28.
|
NO PARTNERSHIP
|
29.
|
NO WAIVER
|
30.
|
INVALIDITY AND SEVERABILITY
|
31.
|
VARIATION
|
32.
|
ENTIRE AGREEMENT
|
33.
|
NO THIRD PARTY BENEFICIARIES
|
34.
|
GOVERNING LAW; JURISDICTION
|
|
34.1 |
This Deposit Agreement shall be governed by and construed in accordance with the laws of the State of New
York, without regard to principles of conflicts of law. The Parties and all Holders irrevocably (a) submit to the non-exclusive jurisdiction of any New York State court sitting in New York City or the U.S. District Court for the
Southern District of New York in any legal suit, action or proceeding arising out of or relating to this Deposit Agreement, (b) waive, to the fullest extent they may effectively do so (but without waiving any rights the parties may
have under the Securities Act), any defense based on inconvenient forum, improper venue or lack of jurisdiction to the maintenance of any such legal suit, action or proceeding, and (c) waive all right to trial by jury in any legal
suit, action, proceeding or counterclaim arising out of this Deposit Agreement or the transactions contemplated hereby. The Client also irrevocably agrees that any legal suit, action or proceeding against Computershare brought by
the Client, arising out of or based upon this Deposit Agreement or the transactions contemplated hereby, may only be instituted in a
New York State court sitting
in New York County or the U.S. District Court for the Southern District of New York. Notwithstanding the foregoing, any judgment may be enforced in any competent court in the United Kingdom or the United States.
|
|
34.2 |
For the benefit of the Depositary, each Holder irrevocably agrees by holding a Depositary Receipt or an interest therein, that any legal suit, action or proceeding
against or involving Computershare, arising out of or based upon this Deposit Agreement or the transactions contemplated hereby, may only be instituted in a New York State court sitting in New York County or the U.S. District Court
for the Southern District of New York, and by holding a Depositary Receipt or an interest therein each irrevocably waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably
submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
|
|
34.3 |
The submission to the jurisdiction of the courts referred to in Section 34.2 shall not (and shall not be construed so as to) limit the rights of the Depositary to take
Proceedings against any Holder in any other court of competent jurisdiction nor shall the taking of Proceedings in any one or more jurisdictions preclude the taking of Proceedings in any other jurisdictions, whether concurrently or
not.
|
35.
|
COUNTERPARTS
|
Executed for and on behalf of
|
/s/ Dennis V. Moccia
|
|
COMPUTERSHARE TRUST COMPANY, N.A.
|
||
Name: Dennis V. Moccia
|
||
Title: Manager, Contract Administration
|
Executed for and on behalf of
|
/s/ Steven Kaye
|
|
TRONOX HOLDINGS PLC
|
|
|
Name: Steven Kaye
|
||
Title: Director
|
||
Executed for and on behalf of
|
/s/ P. A. Koppeschaar
|
|
EXXARO RESOURCES LIMITED
|
|
|
Name: P. A. Koppeschaar
|
||
Title: Finance Director
|
Subsidiary
|
Jurisdiction of Incorporation or Organization
|
|
U.S. Subsidiaries:
|
||
Tronox Blocked Borrower LLC
|
Delaware
|
|
Tronox Finance LLC
|
Delaware
|
|
Tronox Incorporated
|
Delaware
|
|
Tronox LLC
|
Delaware
|
|
Tronox Pigments LLC
|
Delaware
|
|
Tronox US Holdings Inc.
|
Delaware
|
|
Non-U.S. Subsidiaries:
|
||
Ti0
2
Corporation Pty Ltd
|
Australia
|
|
Tific Pty Ltd
|
Australia
|
|
Tronox Australia Holdings Pty Limited
|
Australia
|
|
Tronox Australia Pigments Holdings Pty Limited
|
Australia
|
|
Tronox Australia Pty Ltd
|
Australia
|
|
Tronox Finance plc
|
United Kingdom
|
|
Tronox Global Holdings Pty Limited
|
Australia
|
|
Tronox GmbH
|
Germany
|
|
Tronox Holdings Cooperatief U.A.
|
The Netherlands
|
|
Tronox Holdings Europe C.V.
|
The Netherlands
|
|
Tronox Holdings (Australia) Pty Ltd.
|
Australia
|
|
Tronox International Finance LLP
|
United Kingdom
|
|
Tronox International Holdings GmbH
|
Switzerland
|
|
Tronox Investment Holdings Limited
|
United Kingdom
|
|
Tronox KZN Sands (Pty) Ltd
|
South Africa
|
|
Tronox Limited
|
Australia | |
Tronox Management Pty Ltd.
|
Australia |
Tronox Mineral Sales Pty Ltd
|
Australia
|
|
Tronox Mineral Sands (Pty) Ltd
|
South Africa
|
|
Tronox Pigments Australia Holdings Pty Limited
|
Australia
|
|
Tronox Pigments Australia Pty Limited
|
Australia
|
|
Tronox Pigments (Holland) B.V.
|
The Netherlands
|
|
Tronox Pigments (Netherlands) B.V.
|
The Netherlands
|
|
Tronox Pigments GmbH
|
Germany
|
|
Tronox Pigments Pty Limited
|
Australia
|
|
Tronox Pigments (Singapore) Pte. Ltd.
|
Singapore
|
|
Tronox Sands Holdings Pty Limited
|
Australia
|
|
Tronox Sands Investment Funding Limited
|
United Kingdom
|
|
Tronox Sands UK Holdings Limited
|
United Kingdom
|
|
Tronox Sands LLP
|
United Kingdom
|
|
Tronox UK Finance Limited
|
United Kingdom
|
|
Tronox UK Holdings Limited
|
United Kingdom
|
|
Tronox UK Limited
|
United Kingdom
|
|
Tronox UK Merger Company Limited
|
United Kingdom
|
|
Tronox Western Australia Pty Ltd
|
Australia
|
|
Tronox Worldwide Pty Limited
|
Australia
|
|
Yalgoo Minerals Pty. Ltd.
|
Australia
|